KB v MDB, 2021 ABQB 578

Court of Queen’s Bench of Alberta Citation: KB v MDB, 2021 ABQB 578 Date: 20210723 Docket: FL10-05207 Registry: Red Deer Between: KB Applicant - and - MDB Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice M.H. Hollins _______________________________________________________ [ 1 ] This is an unusual and very difficult family dispute in which a mother and grandmother are both seeking primary care of their daughter/granddaughter. [ 2 ] When she was only 14 years old, the Applicant KB, gave birth to her daughter, (the “Child”).

The Child’s father, SR, was also 14 years old. Because of the young ages of these parents, it was agreed that the Respondent, MDB - who was the Child’s maternal grandmother and KB’s mother - would become the Child’s legal guardian. For the first three years of the Child’s life, her household included her mother KB, her grandmother MDB, her grandmother’s common-law partner, CZ and her aunt, AB (KB’s younger sister and MDB’s youngest daughter). [1]

[ 3 ] When the Mother was 17 years old, she and her stepfather, CZ, got into a physical fight. The Mother left home the following day, helped by her then-boyfriend and now fiancé, JM. The Grandmother remained the Child’s guardian and the Mother visited the Child at the Grandmother’s home, although their interactions were fraught. The Mother began to push for more time with the Child, the Grandmother resisted and things worsened. [ 4 ] Over many years of court applications, the Mother gradually increased her time with the Child, including unsupervised parenting time. She then applied for primary care of the Child.

Many interim orders were made, but the parties continued to attend mediations and pursue court proceedings throughout 2019. In February, 2020, they signed a Final Consent Parenting Order (the “2020 Final Order”) which provided for joint guardianship of the Child and for shared parenting, with the Grandmother having the Child the majority of the time each week. [ 5 ] In April of 2021, the Mother refused to return the Child to the Grandmother as required, for reasons discussed later. The Grandmother brought an emergency application for the return of the Child.

The Mother cross-applied to terminate the Grandmother’s guardianship and become the Child’s sole guardian and caregiver. An Oral Hearing Order of April 28, 2021 set this matter for a hearing with viva voce evidence. The parties agreed that this would take the place of a trial. [ 6 ] The Mother testified at the hearing, as did the Child’s biological father, SR and her fiancé, JM. The Grandmother, who was self-represented, presented her own evidence. Reference was made by both parties to previously-filed Affidavits.

Additionally, a Practice Note 7 Report was commissioned from Jared Froese, a registered psychologist. [ 7 ] For the reasons that follow, I have determined that it is in the best interests of this Child that the Mother assume sole guardianship and primary care of the Child immediately. Change in Circumstances [ 8 ] While much in this case was disputed, the applicable law was not. Under

section 34 of the Family Law Act , the Mother must prove an unforeseen change in the needs or circumstances of the Child since February 14, 2020 that would justify varying the 2020 Final Order. [ 9 ] The Grandmother is understandably frustrated that she consented to an order on the understanding that it would be final, only to be faced with an application to vary it about one year later. The Mother says that, in early 2020, she had extremely limited finances with which to continue litigating and the Order was her best chance to at least increase her parenting time with the Child.

She says that she has never wavered from her resolve to gain primary care of her daughter at some point. [ 10 ] The motivations of these parties to bring or oppose this variation application are not necessarily irrelevant, but they are not central to the legal test for variation, which concerns only the changes in the Child’s needs and circumstances. [ 11 ] The Mother argues that there has been a change, in so far as the Grandmother has repeatedly breached the 2020 Final Order, leading to a situation in which their ability to co-parent at all has been fatally damaged.

The Grandmother responds that the Mother has breached the 2020 Final Order, either more often or equally as often. She wants the 2020 Final Order confirmed. [ 12 ] I am not convinced that it is necessary or wise to embark on a lengthy review of who has breached the 2020 Final Order more often or more egregiously.

There is ample evidence that both parties have “re-interpreted” or simply ignored the terms of the Order when they felt justified in so doing. [ 13 ] For example, since the 2020 Final Order was filed in February of 2020, Covid-19 has inevitably meant that the Child has, on several occasions, been a contact or close contact of someone who had tested positive and then had to be isolated at home. Each party, on different occasions, has kept the Child with them in breach of the 2020 Final Order, citing isolation protocols as justification.

On the third such occasion, there appears to have been a foot race of sorts to the school to pick up the Child to ensure that the Child would spend the following 14 days with whoever got there first. [ 14 ] Both parties keep information about the Child from the other. They do not communicate as joint guardians should on matters of scheduling, health and education. There was an incident in December of 2016 where the Grandmother went to British Columbia to visit CZ and got stuck there because of a bad snowstorm, which made the return trip through the mountains impossible.

The Mother believed - and may still believe - that the Grandmother was actually intending to move away with the Child. [ 15 ] To be fair to the Mother, the Grandmother had listed her Red Deer house for sale during this time and also enrolled both the Child and AB in some school classes in British Columbia because of the length of time she anticipated being stuck there. The Grandmother’s explanations were plausible and coherent and I accept that she was not attempting to relocate with the Child. However, I understand the Mother’s fear of that possibility, given the Grandmother’s historical threats to do just that.

Frankly, they have both acted to increase the acrimony and distrust between them. [ 16 ] Retroactively passing judgment on either party’s actions in the last year may be of limited value to the discussion of material change. However, it is incontrovertible that these parties cannot co-parent this Child at any level for a host of reasons, many of them likely arising from their own painful and dysfunctional parent-child relationship.

While “final” Orders are not meant to be experiments with possible parenting arrangements, it is clearly not in this Child’s best interests to allow the current arrangement to continue. [ 17 ] In addition to the difficulties in co-parenting, the Child’s views have also changed. There was a previous PN7 conducted by a registered social worker, Tara Fitch, on October 1, 2019, when the Child was approximately 8½ years old. At that time, the Child was quite insistent that she should spend equal time with both her Mother and Grandmother, which she described as “fair”. Both parties acknowledge that Ms.

Fitch’s report played a significant

part in their respective decisions to enter into the 2020 Final Order.

[ 18 ] Now, some 19 months later, the Child’s equally clear wish is to live with her Mother and see her Grandmother on the weekends. While the Grandmother was vehement that the Child had been coached, I am not convinced that this PN7 should be ignored for reasons explained later.

It makes all the sense in the world that this girl, as she grows older, would gravitate from her Grandmother to her Mother; a natural migration that could have been facilitated by these parties, but was not. [ 19 ] Although I accept that the parties genuinely thought they could manage the parenting arrangement reflected in the 2020 Final Order, that has proven not to be the case. I believe that both parties have tried to act in what they think are the Child’s best interests, but their own hurt and anger with each other permeates every interaction. According to both Ms. Fitch and Mr.

Froese, the Child is acutely aware of this and is at risk of experiencing deep and continuing trauma from this family conflict. It is not conscionable for this Court to refuse to address this situation. [ 20 ] Based on the Child’s evolving wishes and the impossibility of a continued co-parenting arrangement, I believe a variation of the Order is justified. The Child’s Best Interests [ 21 ] Any variation made to the 2020 Final Order must consider only the Child’s best interests; s.34(3) Family Law Act .

In determining those interests, I am first to ensure her physical, psychological and emotional safety, after which I am to consider a number of factors, including (paraphrased): Her physical, psychological and emotional needs; The history of her care; The Child’s views and preferences, as appropriate; The proposed plans of each party for her care; Any family violence and its effect on the Child and other parties; The nature, strength and stability of the relationships between the Child and the significant people in her life; and The ability and willingness of each party to care for the Child and to cooperate with each other; s.18(2) Family Law Act .

The History of the Child’s Care [ 22 ] When one tries to comprehend the difficult history of this Child’s care, it is almost shocking to think that she is only 10½ years old.

The short factual version is that the Grandmother has been the primary caregiver since she was born, although since February, 2020, the parenting time between the Grandmother and the Mother has been almost equal. [ 23 ] When the Child was born, the Grandmother was completing her nursing program, working very hard to provide for her family, while assuming responsibility for caring for an infant whose own Mother simply did not have the experience or skills necessary to the task at that point. The Mother describes being left for long days with that infant, isolated from her friends and desperately lonely.

The Mother believes now that she suffered from post-partum depression. The Grandmother seems, even now, to minimize the Mother’s struggles after the Child’s birth, which she interpreted as simple disinterest in the Child. [ 24 ] I do not doubt that the Mother, barely a teenager herself, was not up to the demands of parenthood.

Whether because of the Mother’s lack of interest in parenting or because of her own emotional roadblocks, or some combination thereof, even the Mother acknowledges that she would not have been able to care for the Child at the outset without the Grandmother’s involvement. [ 25 ] Enough cannot be said for the Grandmother’s efforts in those early years. Anyone who has raised a teenage girl knows that those years can be difficult for the child and for the parent.

To try and meet the needs of a teenage mother, a younger sibling and a brand-new baby, all while trying to further herself professionally, must have taken a strength and courage few people possess. [ 26 ] However, from the time she left home at age 17, the Mother has been working very hard to become a full-fledged parent to the Child. She has completed her high school and post-secondary education on her own, improved her own life circumstances and has found job security and relationship security. She has taken concrete steps to improve her life and the life of the Child.

The multitude of court appearances over the years have generally been the Mother trying to increase her role in the Child’s life over the perpetual objections of the Grandmother. [ 27 ] The inescapable inference is that the Grandmother will simply never be content to allow the Mother to become the sole or primary caregiver to this Child. The Grandmother blames the Mother for pursuing further parenting time through the courts, saying (correctly) that all these legal proceedings are causing distress for the Child.

However, she acknowledges no responsibility of her own to consider or formulate a plan for transitioning the Child to her Mother’s care, which has necessitated all these court appearances. [ 28 ] In terms of the role of the Child’s biological father, SR, in the history of the Child’s care, he and his parents did attempt to remain involved with the Child after the Child’s birth, but the Mother says that the Grandmother completely controlled their involvement and would only allow SR and his family to see the Child under her supervision. [ 29 ] SR testified that his parents took him regularly to the Grandmother’s house to visit the Child after her birth.

In January, 2012, when the Child was approximately 9 months old, he says that the Grandmother became upset that he had almost allowed the Child to roll off the couch and kicked him out of her house, forcing him to walk home from Red Deer to Blackfalds. This, combined with the fact that

he and the Mother had broken up, led him to abandon any efforts to see the Child further (keep in mind that he was still a young teenager at this time). [ 30 ] SR had no contact with the Child again until January, 2019, when the Grandmother contacted him and his parents. It appears that she may have been looking for his support in her 2019 court battle with the Mother, which is discussed further herein. He says that the Child was very excited to see him, notwithstanding such a long absence.

From early 2019 to March of 2021, SR visited the Child roughly every week for a couple of hours, always under the Grandmother’s supervision. In 2021, there was an argument between the Grandmother and SR, described later. Since that time, SR has continued to see the Child every weekend at the Mother’s house instead of the Grandmother’s house. [ 31 ] It is also worth mentioning that AB has always played a role in the care of this Child. She was only 7 years old when the Mother left home and, according to the Grandmother, played a role in helping care for the Child in those first few years.

Likely because of the hostile relationship between the Mother and Grandmother after the Mother left home in 2014, AB and the Mother never had a good sibling relationship. AB also seems to have been caught in the middle of this legal battle between her mother and sister. [ 32 ] In late 2020, AB called the Mother and asked for assistance in leaving the Grandmother’s home, which she did in February of 2021. Mr. Froese interviewed AB for the PN7 report and her reasons for leaving are discussed later in these reasons.

AB is currently residing with the Mother, in fact sharing a room with the Child at the Mother’s house, so has been “reunited” with her niece. From all accounts, both AB and the Child seem to be happy about this. [ 33 ] Currently, the Child is with the Grandmother 4 days per week and with the Mother 3 days per week. Both have weekend and weekday parenting time. Granting exclusive parenting to the Mother will admittedly be a significant change to the current arrangement but it will end the “tug of war” over parenting and allow both parties to assume separate and independently important roles in the Child’s life.

Meeting the Child’s Needs [ 34 ] The Grandmother is a nurse who has worked with Alberta Health Services for over a decade now. She is established professionally and takes her career and professional duties very seriously. Because the Child is school age, the Grandmother is able to be home with her most of the time that she is not in school. At other times, the Grandmother’s partner, CZ or her other daughter, AB, help with the Child. [ 35 ] The Grandmother’s home is well appointed for the Child. The Child has her own room there, as well as pets, to which she as attached as you would imagine a 10-year old to be.

The Grandmother has a medical licence for marijuana. She denied smoking in front of the Child or even in the house, but the Child reported to Mr. Froese that she would often go to her room when the Grandmother was smoking to avoid having smoke in her face. I do not place undue weight on this, but agree with Mr. Froese’s recommendation that any marijuana smoking in the presence of this Child should be avoided, if possible.

I should add that neither party, nor any other people in the Child’s life, have any substance abuse issues. [ 36 ] The Mother has also worked very hard to move forward since leaving her own home at age 17. She finished high school and then obtained a certification from a post-secondary school in order to work as a health care aide. She works full-time nights at a long- term care facility and has received good opportunities for promotion. Her work

schedule allows her to sleep during the day and be with the Child outside of school hours. [ 37 ] The Grandmother made much of the fact that the Mother often has to have a nap in the evening before putting the Child to bed and leaving for her night shift, but I do not find that significant. Most parents have employment that may change in description or timing over the course of their children’s lives and families have to figure out those changes and adjust.

In fact, the Mother talked about the likelihood that she will be moving to day shifts to better accommodate the Child’s schedule. [ 38 ] JR, who is also fully employed, also cares for the Child. He typically gets her breakfast, helps her make lunch and sees her off to school in the morning. He and the Mother both spend time with the Child after school and in the evening. As mentioned, the Mother and JR have been together for 7 years now. They are planning to get married this summer. They currently rent a 3-bedroom apartment. [ 39 ] There is some disparity in the financial means of these parties.

The Grandmother has a larger home and money for traveling and for camping. At the Mother’s home, the Child shares a bedroom at her Mother’s with AB. Both parties are capable of meeting the Child’s physical needs. While the Grandmother’s house is larger and she can apparently afford more camping weekends and vacations than the Mother can right now, the Child told Mr. Froese that those things did not matter to her as much as being with her Mother. [ 40 ] Both parties also impressed me as being very committed to the Child’s physical welfare.

Unfortunately, this has taken the form of them arguing over who would take her to the doctor for which appointments and even when or whether medical care is needed at all. Apparently, the Grandmother would not give the Mother the Child’s health care card number, forcing her to eventually get her own for the Child. I can only surmise that this was an attempt by the Grandmother to control all medical care provided to the Child. [ 41 ] There was also a great deal of evidence led by both parties about the Child’s academic and behavioural development.

She may be struggling in certain subjects academically, but is by no means irretrievably behind her classmates, particularly given how Covid- 19 has affected the educational progress of so many school-age children. Both parties impressed me as being very committed to the Child’s studies and social development and to being aware of school activities and homework assignments, but both had instances of failing to share important information with the other and of blaming the other for the Child’s academic or social difficulties.

Hopefully, as the Child adjusts to living with her Mother and these legal proceedings cease to be a central focus of her life, her educational and behavioural challenges will become more manageable. [ 42 ] I believe that both parties are capable of meeting the Child’s physical and financial needs. The real difference is in their

capacity to meet the Child’s emotional needs. While both of them remain demonstrably angry with each other, the Mother appears better positioned to identify and address the Child’s emotional needs, even where it means acknowledging her own parenting deficiencies (which we all have). [ 43 ] The Grandmother has more often shown her limits on selflessness and empathy, particularly in how she has dealt with the Mother, her own daughter. Even at this hearing, the Grandmother seemed to have some residual anger or resentment toward the Mother for “sneaking around” as a teenager and getting pregnant.

The Mother explained that she was not allowed to see boys as a teenager and so was sneaking SR in and out of the house, in defiance of those rules. [ 44 ] She then essentially repeated that behaviour at age 17, by sneaking her now fiancé, JM, in and out of the Grandmother’s house. Both the Grandmother and her partner, CZ, apparently reacted strongly and very adversely to this discovery.

It was somehow a factor in the physical fight between the Mother and CZ while the Grandmother was away writing her nursing exams. [ 45 ] Following the altercation with her stepfather, the Mother left home in July of 2014 and never returned, despite the Grandmother’s repeated pleas for her to do so. The Mother claims that the Grandmother used many tactics to try and force her to return.

These including offering counselling to the Mother, but only if she returned home and once using a scheduled visit with the Child to bait the Mother into attending, only to have the Grandmother whisk the Child away from her at the outset and insist on the two of them talking about the Mother returning home. [ 46 ] Some of this is denied by the Grandmother. However, there is no denying how angry she was that the Mother had defied and continued to defy her by involving herself with JM and refusing to return home.

Text messages from the fall of 2014 were marked as exhibits at the hearing, in which the Grandmother called the Mother “a useless slut”, “a pathetic excuse for a parent” and “a complete failure as a mother”. [ 47 ] I am fully aware of the fact that these text messages were not a complete picture of the parties’ communication. However, even if the Mother was using similarly horrible language, a 17-year old, feeling forced from her home because of confrontations with her stepfather and then kept from her own child is a different animal than a grown woman speaking to her child.

The pattern that emerges is exactly as described by the Mother and AB; that the Grandmother was fine to deal with as long as she was in control and getting what she wanted but could be vicious if crossed. [ 48 ] This Child is 10½ and will be a teenager in the blink of an eye. I think the Mother’s temperament, experience and attitude will position her to better deal with the Child’s current and potential future emotional needs, including how to incorporate other people into the Child’s life regardless of the Mother’s own relationships with them.

The Child’s Views [ 49 ] To complete his “Voice of the Child” Report dated May 31, 2021, Mr. Froese interviewed the Mother and the Grandmother for approximately one hour each. He interviewed the Child twice, brought into the office once by each party, respectively. [ 50 ] Mr. Froese also interviewed AB, the Mother’s younger sister. Both AB and the Mother described a damaging home environment with a lot of fighting between Grandmother and CZ, an historical lack of emotional support and demeaning, controlling behaviours by the Grandmother. Having interviewed the parties, the Child and AB, Mr.

Froese reports the following: (

a) The Child wants to live with her Mother but still see her Grandmother; (

b) The Child reports that the Grandmother disparages the Mother in front of her, although Mr. Froese cites unhealthy behaviours between all the adults in the Child’s life; and (

c) The Child expressed sadness and fear about the fighting between her Grandmother and CZ. [ 51 ] The Grandmother objected vehemently to any reliance being placed on Mr. Froese’s report, citing bias as well as an incomplete and inaccurate record of background facts. These types of complaints are not unusual when a report contains conclusions that are unhelpful to one party’s legal position. [ 52 ] The Grandmother complains that Mr. Froese did not assess the Child in each home, but rather interviewed the parties and the Child in his offices on separate occasions. That is true, but Mr.

Froese was specifically commissioned to complete a PN7 “Voice of the Child” Report. He was not asked to, and importantly did not, provide any opinions to this Court about where the Child should live or with whom. His mandate was to get enough information from the Child and from the participants here to be able to communicate the Child’s wishes, preferences and observations. [ 53 ] The Grandmother also complained that the Child was interviewed during her time with the Mother and was coached and even bribed by the Mother to say what she did. However, each party accompanied the Child to Mr. Froese one time.

Further, the scope of all of the interviews and the substance of the Child's comments to him convince me that his approach and the Child’s responses were broader than the Grandmother believes. In other words, the Child was not merely parroting or even describing her last few days before the interview, but describing many different points in time with each party. [ 54 ] Just like AB and the Mother, the Child reports significant levels of conflict within the Grandmother’s home, saying that CZ and the Grandmother “fight a lot” and it scares her. To this, the Grandmother responds that all relationships have conflict.

That may be true, but the impression left here is that the Grandmother has normalized a level of conflict in her home which is not healthy, probably not for her and certainly not for the Child. The Child told Mr. Froese that she often feels scared at her Grandmother’s house, but not at her Mother’s house. She wants to live full-time with her Mother, but is – as children often are – very worried about hurting her Grandmother’s feelings.

Family Violence [ 55 ] Family violence does not dominate this case, but it is certainly a factor. The most obvious example of family violence that has impacted all the members of this family is the fight between the Mother and CZ on or about July 1, 2014, which precipitated the Mother’s leaving home. [ 56 ] The Mother’s evidence was that CZ said “I should wipe that smirk off your face” or words to that effect and that she responded “why don’t you?”. The Mother says that CZ pushed or threw her down and then got her in a headlock at which point she bit him on the side of his torso so that he would let go.

While stories of the following day vary, it is agreed that the Mother left, assisted by JM, and went to stay with a friend. Apparently, the police were called to the incident, but declined to lay charges or investigate further. [ 57 ] The Grandmother, notwithstanding she was not present for the fight, still insisted at this hearing that the Mother was the instigator and aggressor and that the Mother ought to have apologized to CZ and remained in the home. This position was somewhat concerning to me. CZ did not testify so I never saw him in person, nor heard his side of this story.

However, for the Grandmother to so adamantly side with her partner at the expense of her own daughter, regarding any altercation between a grown man and a teenage girl, is a troubling dynamic. [ 58 ] Particularly in light of an earlier allegation by the Mother of sexual abuse by her uncle (the Grandmother’s brother) - which the Grandmother simply addressed in court by saying that no charges were ever laid against her brother - it is not difficult to understand why the Mother felt somewhat unprotected as a child and still carries that hurt, regardless of what did or did not actually happen. [ 59 ] While the Grandmother continues to defend CZ as acting in self-defence on the July, 2014 incident, there were many other examples given of CZ’s aggressive, albeit not necessarily violent, behaviour.

There have been a number of notably acrimonious interactions between CZ and JM, the Mother’s fiancé. These have included swearing, yelling, damaging property and verbalizing threats. [ 60 ] For example, soon after the Mother left the Grandmother’s home, she and JM came back to get her car. This was a vehicle that the Grandmother and CZ had purchased for the Mother. The parties disagreed about whether the vehicle was registered in the Mother’s name or not, but I need not resolve that particular dispute.

I accept that the car belonged to the Mother and I infer that the Grandmother was again trying to force the Mother to come home by controlling her access to her vehicle, going so far as to let the air out of the tires and cancel the insurance. [ 61 ] The other incident of note was when the Mother refused the return the Child to the Grandmother in April of this year. The Grandmother called the police, but they said they could not assist as the Order contained no police enforcement clause. CZ came over to the Mother and JM’s apartment and was yelling, kicking and rocking their vehicle and throwing rocks.

While I can appreciate how angry and frustrated the Grandmother and CZ must have been to have the Child withheld in breach of a court order, these kind of confrontations in the presence of the Child simply cannot continue. [ 62 ] While some of these were isolated incidents, there was no real dispute that pick ups and drops offs involving any contact between these parties are often confrontational. Particularly when court proceedings are looming, their language with each other is abominable, likely because they are both frightened at the prospect of a diminished role vis-à-vis the Child.

Both parties seem somewhat quick to anger, but the Grandmother marginally more so. Certainly, her home and her orientation to all the other people in the Child’s life presented as more volatile than the Mother’s. The Child’s Relationships [ 63 ] The Child is very attached to both the Mother and the Grandmother, as one might expect. In fact, the Child’s open affection for all the people in her life speaks hopeful volumes about her resiliency and about the genuine love she has from all quarters. The Child does not express any more or less affection for either her Mother or Grandmother, according to Mr.

Froese’s report. She wants to live with her Mother, but is concerned about that fact hurting her Grandmother’s feelings. [ 64 ] It is not so much the Child’s relationship to either of the parties that weighs so heavily on this decision – the Child seems to love everyone. However, their respective relationships to all the other people in the Child’s life are complicated, largely negative and very impactful on the Child. CZ (the Step-Grandfather) [ 65 ] There was not much evidence of the Child’s relationship with the Grandmother’s partner CZ other than her feeling scared when they fight, as mentioned earlier.

The Grandmother essentially admitted a level of conflict between her and CZ without being able to acknowledge how this has affected and continues to affect others. CZ himself has only negative relationships with the Mother and with JM, at least from their telling. JM (the Step-Father) [ 66 ] The Child is also understandably attached to JM, who will apparently be her stepfather soon. JM has been a part of the Child’s life for as long as she can remember. His family is also in Red Deer.

The animosity between the Grandmother, CZ and JM is well established. [ 67 ] For JM’s part, he presented as quite protective of the Mother, which is understandable given that he has been with her since before she left home and for the 7 years of ensuing court proceedings. [ 68 ] On one occasion, JM flipped the Grandmother a middle finger when she was late returning the Child’s phone. He agrees this was a childish gesture, meant to relieve the Mother’s anxiety over the confrontation, and that he regrets it. The Mother apologized to the

Grandmother for this by text. However, the Grandmother still characterizes this as “abusive” behaviour and cites it as a reason that the Child should not be with the Mother. [ 69 ] I do not condone or excuse JM’s actions and accept that he has, on occasion, made matters worse. However, the intensity of both the Grandmother and CZ’s dislike of JM is puzzling to me. JM and the Mother have been together for 7 years, since before the Mother left the Grandmother’s house.

They have a stable relationship, are both employed and renting a 3-bedroom apartment in Red Deer and are both involved in taking care of the Child when she is with them. [ 70 ] JM has been completely supportive of the Mother. I can therefore only surmise that the Grandmother sees JM as a member of “the other team” or possibly that she remains angry, these many years later, because JM was sneaking in and out of her house when the Mother was 17. Text messages from the Grandmother around that time indicate that she blamed JM for coaching the Mother to leave home.

She has focused on JM as the reason the Mother would not return home, despite all the Grandmother’s pleas. For some time and perhaps even now, the Grandmother would not allow JM in her home. [ 71 ] No one is saying that the Grandmother has to like the Child’s future step-father, but she has gone so far as to make allegations that he is inappropriate with the Child, with no basis whatsoever. She has also attempted to damage the Child’s relationship with JM.

SR, when he reconnected with the Child beginning in 2019, reported that she told him that the Grandmother had told the Child that JM was “bad” and would “take her away”. The Child told SR she did not believe those things and thought JM was okay, although she was afraid to contradict her Grandmother. AB (the Aunt) [ 72 ] AB and the Child appear to have a genuine affection for each other. Hopefully, AB has not become so involved in this custody matter that the parties, particularly her mother (the Grandmother), cannot see that AB has very real and urgent emotional needs of her own. AB described to Mr.

Froese a damaging home environment with the Grandmother, which sounded a lot like the Mother’s experience as well as the Child’s to a lesser degree; a lot of fighting between Grandmother and CZ, a lack of emotional support going back many years and demeaning, controlling behaviours by the Grandmother. [ 73 ] I declined to have AB testify at the hearing. The Oral Hearing Order provided that the Mother could only call AB as a witness if she was not interviewed by Mr. Froese. Further, she is still only 17 years old and, by all parties’ telling, very emotionally vulnerable right now.

Putting her in the position of testifying about these personal and difficult matters and particularly to be subjected to cross- examination by her own mother, was so unpalatable that it outweighed the value of her first-hand evidence. [ 74 ] It was very clear from the Grandmother’s evidence at this hearing and from her cross-examination of the Mother that the Grandmother blames the Mother completely for AB leaving home. She accuses the Mother of actively recruiting AB to assist in this custody dispute by turning on the Grandmother.

She leaves the impression that she is very hurt and very angry at the idea that AB would go to live with the Mother and would say negative things about her to Mr. Froese. [ 75 ] The Mother was quite measured in her testimony about AB. She insists that AB is the one that reached out to her, notwithstanding the Grandmother’s suspicions otherwise. Given what AB said privately to Mr. Froese about her past mental and emotional problems, I accept that she initiated the process of leaving the Grandmother’s home. The Mother is trying to help her sister by arranging counselling for her.

She contemplated applying for guardianship, but decided against it, given that AB will be 18 years old later this year. [ 76 ] I hope that both parties will encourage and facilitate the relationship between AB and the Child. Certainly, at present, in the Mother’s home, that is already happening. Hopefully, there will be some future healing of the rift between the Grandmother and AB, both for their sakes and because it would be a positive development for the Child if she no longer had to keep track of who disliked whom.

SR (the Father) [ 77 ] The Child’s relationship with her biological father, SR, and his family, is really just getting traction now. Having been absent from her life, he reappeared in 2019, at which time the Grandmother seems to have recruited him to support her resistance to the Mother’s attempts in 2019 to apply for primary care.

SR provided her with a letter dated February 5, 2019 containing a number of negative accusations about the Mother’s behaviour, following which he was allowed weekly visits with the Child at the Grandmother’s. [ 78 ] Although SR’s February 2019 letter was supportive of Grandmother’s parenting, his testimony at this hearing was not. He says that the Grandmother always strictly controlled his visits. He was not allowed to hug the Child or see her room or be with her in her room. He was allowed to go for bike rides with her, but not to go into his own home with her.

SR says that the Grandmother consistently spoke very negatively about the Mother and JM to him. [ 79 ] The circumstances surrounding the Grandmother ending SR’s visits is particularly concerning. On or about March 25, 2021, SR asked to temporarily lower the child support he was paying to the Grandmother for the Child’s benefit because he had incurred a large, uninsured dental bill that he needed to pay. The Grandmother refused to agree and in fact, told SR that if he reduced the support he was paying to her, he would not see the Child again.

SR reacted angrily, telling the Grandmother that he was also in contact with the Mother and would simply arrange to see the Child during the Mother’s parenting time. [ 80 ] The Grandmother had not known that the Mother and SR were back in contact, indeed they appear to have agreed to keep that information from her. She reacted very badly, presumably because she had assumed SR was exclusively “in her corner” regarding these proceedings.

On April 7, 2021, she sent a text to the Mother threatening to report SR to Children’s Services for inappropriately touching the Child, specifically the fact that he hugged her, tickled her and, on one occasion, licked her hand in a teasing way while she was trying to grab the video game remote from him. The Grandmother told the Mother that unless she would promise that the Child would never see SR in her presence again, the Grandmother was prepared to unlawfully withhold the Child from the Mother.

[ 81 ] This was the threat that the Mother says drove her to purposefully breach the 2020 Final Order and not return the Child to the Grandmother as required, as the Mother says she feared never seeing her again. Essentially, both parties then applied to court on an emergency basis and this hearing was arranged. [ 82 ] I do not condone the Mother breaching the 2020 Final Order. She ought to have returned the Child in the normal course and then brought her application to vary that Order with the evidence outlined above.

However, I must be guided by the Child’s best interests, not by meting out retribution as between the parties. [ 83 ] I accept that there are some discrepancies between what SR was saying in February of 2019 and what he said at this hearing in June of 2021, although I do not see those as regarding any particularly relevant events. What I do see is a young man whose relationship with his Child has been difficult and intermittent, both because of his young age and because his time with her has been very carefully controlled at all points in time.

I think it is understandable that he would be prepared to support whichever party he thought was going to more likely facilitate his seeing his Child and frankly, I do not blame him for that. [ 84 ] For that reason, I do not place significant weight on his testimony about either party. However, I do accept that the Grandmother threatened to cut off his access to the Child over a child support dispute and worse, was prepared to make allegations of sexual impropriety against the Child’s father to regain control over the situation.

To reintroduce SR and his parents to the Child when it served her purposes and then threaten to banish him again obviously disregarded the Child’s interests. [ 85 ] The Mother is committed – and SR corroborates this – to helping SR cultivate his relationship with the Child. He says this is not in return for his testimony here, as the Mother has been facilitating his visits with the Child since January, 2021, when he contacted her. He currently sees the Child at the Mother’s home every Sunday from 3-6 pm.

He says he has noticed that the Child is more open and carefree at the Mother’s home and he enjoys being able to play with her more freely and for her to show her all the things in her room. [ 86 ] Sadly, in my view, he has not been alone with the Child pending these proceedings, because of the Grandmother’s previous allegations.

Although no first-hand Children’s Services evidence was introduced at this hearing, I understand Children’s Services investigated SR and concluded there were no issues as alleged by the Grandmother or at all. [ 87 ] In conclusion, leaving the Grandmother as the primary guardian of this Child would likely mean sacrificing the Child’s relationships with everyone else; AB, SR and JM and SR and JM’s extended families. The Mother is committed to facilitating the Child’s relationships with JM and his family, SR and his family and with AB.

I believe she will also do what she can to keep the Grandmother and CZ in the Child’s life. For example, she actually proposed a lengthy transition schedule. I am not following that course for reasons explained below, but I take that as a sign that the Mother realizes the continued presence of the Child’s grandparents is desirable.

Conclusion [ 88 ] In her closing, the Grandmother explained that she has resisted the Mother’s attempts to become the Child’s primary caregiver because the Mother is too inexperienced, sleeps too much, allows JM and SR to be with the Child in dangerous or inappropriate ways and is angry and hostile. [ 89 ] The Mother has less parenting experience than does the Grandmother, but that will always be empirically true. The Mother has overcome a difficult beginning as a parent and has demonstrated her growth and maturity. This should be encouraged, if not celebrated, by the Grandmother, but it has not been.

As to the Grandmother’s other complaints, I have addressed all of those already. I have sympathy for the Grandmother to have to hear the kinds of things that her own children have said. I also understand that there are many sides to a story as complicated as this one. However, the Mother is ready and able to be a mother. Hopefully, the Grandmother is ready and able to be a grandmother. [ 90 ] The Grandmother’s legal guardianship of the Child is terminated immediately. I do not know if SR is currently a legal guardian. If he is, then he and the Mother will be joint legal guardians.

If he is not, the Mother will be the Child’s legal guardian. [ 91 ] I am going to specify the arrangements for the rest of this summer, which will be the transition time for the Child to move into her Mother’s full-time care. The current 4/3 weekly split will continue to Sunday, August 1, 2021 at which time the Child will move from her Grandmother’s home to her Mother’s home. [ 92 ] Following this, the Grandmother will have one full, consecutive week of parenting time in August so that she can take the Child camping and/or to Manitoba to visit relatives.

That week must begin no earlier than August 8, 2021 and must end no later than August 22, 2021. The Grandmother may choose which 7-day period she wants, but must select those dates and notify the Mother by text message no later than July 31, 2021 which week she has chosen or if she is waiving her right to this time with the Child. [ 93 ] The Grandmother must provide a full itinerary of where they will be staying and they must be reachable at all times by cell phone, notwithstanding this may limit their camping options.

That travel plan, including return date and time, must be put in the form of a Consent Order, signed by the Grandmother and provided to me for signature no later than August 4, 2021. It should include a police enforcement clause. I ask for the assistance of counsel to the Mother in finalizing this Order. [ 94 ] I will be completely forthright here and say that I am somewhat concerned about possible retribution by the Grandmother, who has demonstrated on many occasions that she does not react well to things outside her control.

I have thought very long and hard about further specified access time for the Grandmother and have decided against it. I am leaving the decision to the Mother as to when, how often and under what conditions the Grandmother should have access to the Child. [ 95 ] This is not because I do not understand or believe the importance of the Grandmother’s presence in the Child’s life – it will be

very important. I believe strongly that the Grandmother and CZ should have regular visits with the Child, as the Child herself has requested. However, I will not be around to see how the Grandmother reacts to this judgment, whether or not she is able to insulate the Child from her inevitable disappointment and how well she supports the Child during this transition to her Mother’s full-time care. But the Mother will be, so the decision of how to handle the Grandmother’s role in the Child’s life going forward will be hers.

If I try to parse out the Grandmother’s rights in a court order, I fear the litigation will simply continue. [ 96 ] Part of being a good parent is understanding that your Child will need the experience, affection and guidance of other people beside yourself.

This is my vote of confidence in the Mother that, now that parenting is “off the table” for any future court applications or police involvement, she will recognize that her painful and perhaps irrevocably damaged relationship with her own mother is not, and does not have to be, the relationship that this Child has with her Grandmother. [ 97 ] It is my hope that both parties will do the right thing by this Child.

I strongly encourage both parties to seek some professional family counselling about how to support the Child in this change, how to speak to her about what is happening and how to cope with their own challenges and feelings about what has happened in this family. [ 98 ] If either party is claiming costs and no agreement can be reached, the parties have leave to apply for a costs order. Heard on the 17 th to 18 th and 28 th to 29 th days of June, 2021. Dated at the City of Red Deer, Alberta this 23 rd day of July, 2021 . M.H. Hollins J.C.Q.B.A. Appearances: Ms. S. Das for the Applicant MDB For herself