ERR v PJS, 2021 ABQB 65

Court of Queen’s Bench of Alberta Citation: ERR v PJS, 2021 ABQB 65 Date: 20210126 Docket: 4803 186618 Registry: Edmonton Between: ERR Plaintiff/Respondent/Cross-Applicant - and - PJS Defendant/Applicant/Cross-Respondent Corrected judgment: A corrigendum was issued on January 27, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction

[ 1 ] A self-represented father whose access had been suspended pending the outcome of assault charges against him (suspected assault of the child of the marriage) now applies, with the Crown staying those proceedings, for “50/50 custody or full custody” of the child. [ 2 ] The mother, sole-parenting since at least June 2019, opposes, in

part citing perceived-to-be-racist communications by the father. She also seeks severance of the corollary issues from the parties’ divorce action and, if granted, leave to apply for a desk divorce and an order (if needed) dispensing with the father’s consent to the divorce. [ 3 ] I find that too many counter-indicators to shared parenting are present here (including the father’s offensive and unacceptable communications) and accordingly dismiss his application. I do reinstate his pre-existing (before suspension) access, albeit on a staged basis.

Severance-wise, I defer a decision until receiving the father’s position. B. Background [ 4 ] The parties started a relationship in July 2014, married in January 2015, welcomed a son in January 2016, and separated in 2018. [ 5 ] They had a tumultuous marriage and the same can be said of their separated life, characterized by deep conflict and an already-thick court file. [ 6 ] Per a Bercov J. order in March 2019, the mother had day-to-day care of the child, with every-second-week-end access for the father. [ 7 ] As noted, the father was charged (summer 2019) with assaulting the son.

While those charges were pending, his parenting time was suspended, initially by Loparco J. in July 2019 and as continued by Fagnan J. and Fraser J. later in July 2019 and September 2019, respectively, through to February 28, 2020. [ 8 ] On that date, I heard a special application, which resulted in

part in an order effectively continuing the suspension pending conclusion of the assault charges. [ 9 ] The father’s application for shared (or alternatively full) parenting came in July 2020, after the Crown stayed the assault charges. He filed an affidavit (detailed below) outlining why he believes parenting should be overhauled. [ 10 ] The mother cross-applied for the noted severance and desk-divorce relief. She resists the proposed changes to parenting, supported by evidence provided in two affidavits.

In a nutshell, her position is that, given the long separation from the child, plus the (perceived by her) father’s anger-management and other issues, the starting point should be supervised access, followed by (if such contact is beneficial for both the father and child) a slow ramp-up of enhanced access, leading eventually to unsupervised overnight visits. C. Parenting Father’s position and key evidence [ 11 ] The father’s position is reflected in and supported by his July 23, 2020 affidavit (reproduced in part): I have not seen my son for thirteen months.

I missed out on birthdays, Christmas, and other holidays. He missed out on seeing his extended family. I recently found out I have a half-sister in Edmonton who has [a son]. I am [seeking] 50/50 custody or full custody . I have family and friend support in Edmonton. [some family members listed] My friends [include] [E], who took two years of college in early child development [and] who works in daycare looking after [professionals’] kids …[she] also [has] [children] [and] she’s very good at dealing with kids and parents.

I believe for [our son’s] welfare, he needs me as his dad, [as well as] his grandparents and cousins. [The mother] does not care [about] [our son’s] welfare. She is narcissistic. She blocked my family from seeing [our son] after they helped her make it to Canada. In Europe, Australia, and in America, they charged these women for false allegations. [The mother] [obtained] three [emergency- protection orders] and tried to [have me thrown in jail], [with] all of them dropped. So, who’s the problem? She’s [a] trouble maker, causing trouble with [my] family, roommates and neighbours.

They all said [she is] mean, aggressive, [and] out for revenge. My position is [that] she is above the law. Filipino women cause trouble with everybody. I feel that [this is] a witch hunt because I’m [a] white father, thus discrimination. Police, Child Services, and the courts believe all white males are evil [and the] root of all problems. Take a look [at] what’s happening in the States. We need fairness and equality. She [is] not Canadian. She is [a] fraud. There is still [an] investigation [of the mother] with [Canada] Immigration for marriage fraud. The case is still open.

[ 12 ] The father followed up his affidavit with various emails to the Court aiming to shore up his position, including: • an email offering the view that “[I am] the better parent, [as I] takes [our son] out [for] physical activities, and [I make] sure that he gets proper nutrition. [The mother] is overweight [and has] health problems.

I have [a] vehicle [and so] I’m able to pick [our son] up and [get him to] his appointments and recreational activities … [The mother] intentionally takes [our son] away from his Canadian culture [via] parental alienation that demonizes me as Canadian. [Most mature] mothers [would] allow their children to see grandparents and cousins, not take them away from them”; • an email asking me to “look at all famous serial killers [who] came from fatherless homes with aggressively pushy mothers that were abusive …”; • another advising that “[the mother] came to Canada [to] drain the system and scream for more money because The Philippines is a third-world country where they [do not have] social services or [medicare]. [She] used me for security, taking money from us hard- working Canadians.

Her whole family does not work. …”; • from-the-Internet statistics (with no particular source(

s) provided) on the odds of “children who grew up fatherless” meeting various fates (going to prison, etc.); and • a note from his friend E providing the opinion that supervised access “doesn’t really apply to him” because his observed-by-E “reactions towards children [show him to be] kind and loving [and] a very active man who loves kids and outdoor activities.” Mother’s position and key evidence [ 13 ] The mother has a different view, as reflected in these extracts from her affidavits (mixtures of facts and opinions) [1] : … I am not an expert on child psychology but I would like to see certain measures taken to ensure the re-introduction is safe for [our son], who is still very young [born January 2016].

First, I would like to see [him] take an anger-management course to deal with his anger issue. I lived with [him] for three years, and I know he has difficulty controlling his anger. It was very easy for [him] to get agitated and lose his temper … When [he] gets angry, he uses profanities and disparaging language, [and] screams and yells. This should never occur in front of children. … … I believe the Father will [also] benefit from taking a parenting course to learn positive parenting skills. As you can read [in certain exhibits], the Father still has a lot of hate and bias toward me because I am an immigrant .

I deny [I] ever used the marriage as a way to immigrate to Canada. … I was eligible to apply to become a permanent resident because of my work experience in Canada, but it was the [Father] who proposed that he would sponsor me. I obtained education [after] the marriage to become a health aide, and I have worked in a seniors’ facility (high-risk position) during this pandemic. I have contributed to Canada’s prosperity in the best way I can and worked hard over the years. The Father’s degradation of immigrants is very distasteful.

It is in [our son’s] best interests that both parents … co-parent in a civil manner and treat each other with respect. I do not believe this is ever possible. The Father has emailed my counsel numerous times demanding 50/50 parenting time or he would continue to threaten me with an immigration-fraud claim. [emails exhibited] The parenting arrangement should be in [our son’s] best interest, and I would not jeopardize that [i.e. by agreeing to his proposal just so] the Father [would] stop harassing me. There should be minimum contact between the Father and [me], and all communication should be through emails.

This is the safest way …. … 50/50 shared parenting … is [not] realistic, at least not at the present time. [Our son] is only 4.5 years old – now 5 or close to it], and I have been the most consistent caregiver … since his birth.

I have a stable job and a safe home for [our child]. … [ 14 ] In support of her assertions of hate and bias, the mother pointed (in part) to the following Facebook posts by him between mid-November 2019 and mid-January 2020: Australia catching on the family court fuck philippino mothers send them back their shit hole country you bunch [of] welfare bums [and] con artist[s]; … some immigrants don’t deserve to be in Canada including philippino they scam system send them back to their shit hole country. The [women] are gold diggers take advantage of Canadians.

Philippino women use Canadians for money and use them [to] stay in Canada they commit marriage fraud. They scam system and play victim so get money from social services. They need to send them back to their country the shit hole [where] they belong. … Any Canadian father scammed [by] immigrant mother [and] who can’t see their kids should put gas chamber like hittler did to jews.

Brown people root [of] all evil. [Commenting on a new story headlined “What’s causing lightning during the Philippines [volcanic] eruption?”] Maybe kill her family and rest stop immigrating to Canada or maybe God’s way of punishing these evil people. [ 15 ] Such comments are of a piece with his comments in emails to the mother’s counsel: [April 22, 2020] “Go fuck yourself I [have] had enough with asian people.” [April 23, 2020] “Your asian … don’t talk to me or send me email your not consider[ed] human your below animal you people are fraud

you don’t belong in Canada go back to your own country”; and [July 16, 2020] “Talked to [a lawyer] from [an Edmonton law firm] my criminal lawyer at [phone number]. I thought all asian evil but she did good job change my opinion …”; [ 16 ] The mother’s counsel made the following submissions on parenting (part of her September 26, 2020 letter-form submissions): The Mother has outlined her proposed access

schedule for the Father [starting with supervised access] in her Affidavit …. We believe this proposal strikes a balance between re-introducing the Father to [the child] and protection of [the child’s] wellbeing and is in the child’s best interests. The Supreme Court of Canada dealt with the issue of supervised access in Young v Young, [1994] 4 SCR 3 and concluded that the test regarding access is the “best interest of the child.” In some circumstances a risk of harm to the child is a factor in determining the best interests of the child , see Young at paragraph 209.

In discussion [of] risk of harm to the child, McLachlin J. [as she then was] stated the following at paragraph 210: I conclude that the ultimate criterion for determining limits on access to a child is the best interests of the child. The custodial parent has no “right” to limit access … The risk of harm to the child, while not the ultimate legal test, may also be a factor to be considered. This is particularly so where the issue is the quality of access – what the access parent may say or do with the child.

In such cases, it will generally be relevant to consider whether the conduct in question poses a risk of harm to the child which outweighs the benefits of a free and open relationship which permits the child to know the access parent as he or she is (emphasis added by writer). It goes without saying that, as for any other legal test, the judge, in determining what is in the best interests of the child, must act not on his or her personal views, but on the evidence.

The father’s involvement with the child has not been consistent since April 2018, and the child is less than 5 years old currently [turned or turns 5 in January 2021]. It is important that the Father is to be re-introduced to the child in an environment where the child feels safe and secure. The Father has a short temper, and his conduct in the past demonstrates his lack of patience …. A child’s fussiness and tantrum may be reacted [to] by the Father’s poor choice of actions. This is especially so when the child does not have a strong bond with the Father.

That’s why a supervised environment will ensure that the Father keeps his action[s] in check and a third [party] adult can intervene to diffuse tensions when necessary. As long as al the supervised visits go smoothly, the Mother agrees to transition the visits to unsupervised, and eventually to overnight. The Mother is concerned with the Father’s discriminatory attitude toward her, and is worried the Father may say things inappropriate to the child.

We acknowledge that there may be no effective way to prevent the Father from instilling his opinion to the child, and we regret that the Father has been continuing to do so without reflection upon his own choice of words and actions. To the Mother, it is important that the Father is ordered to not make any disparaging remarks about her and the Filipino community in front of the child. [emphasis added] Analysis of father’s parenting proposal [ 17 ] Is it in the child’s best interests to shift to equal shared parenting or even to sole parenting by the father?

If not, what is the “best interests” parenting arrangement here? [ 18 ] In CAS v NPC [2] , I canvassed various indicators pointing towards or against shared parenting.

In light of those indicators, I note the following here: • neither party provided evidence of the pre-separation division of parenting responsibilities i.e. during the first two or so years of the child’s life; • the father did not contest the mother’s evidence of her having been the primary parent for all or virtually all of the post- separation period (i.e. since 2018); • the most recent parenting order (interim order of Bercov J. granted March 21, 2019) gave day-to-day care of the child to the mother, with the father having every-second-weekend access ; • the evidence does not reveal clearly whether the father exercised that access.

I will assume that he did; • in any case, the father’s access was suspended no later than summer 2019, with that suspension continuing to the present; • per the father, the rationale for the suspension (suspected assault of the child by the father) was eclipsed by the Crown’s decision to stay assault proceedings ; • all in the all, the child has been in the mother’s sole care for the last approximately eighteen months, with the father having had every-second-weekend access for a few months preceding that; • the father did not provide evidence of any particular parenting plan e.g. where the child would live if with him (e.g. what kind of accommodation?

Living alone?

With others?); his proposal for the child’s schooling or even of any dialogue with the mother on that subject; the father’s current employment status and, if he is employed or becomes employed, his plan for care for the child when he is at work; his ideas (if any) about extra-curricular activities for the child; or any other parenting details. (As noted, he did offer the view that his friend E is a highly trained in education and child care and that she is wonderful with children, but he did not give evidence that he has arranged or is even planning to arrange for her assistance with child care (if any is needed), and her email in support of his application did not mention anything about a role for her in caring for the child, even contingent);

• the already-voluminous court filings reflect parties who are in high conflict and unable to agree on virtually anything ; • the child is too young (five or almost five – birthday this month) for his views to be canvassed e.g. via a Voice of the Child report; and • in mid-July 2020, after the assault charges were stayed but before the father applied in Family Docket Court for direction on his parenting application, he advised the mother’s counsel that “I want [a] DNA test to make sure it’s my son .” I assume from the present parenting application by him that he somehow was satisfied on that issue (and without a DNA test, with no evidence such was pursued.) His very raising and then promptly sidelining parentage as an issue makes me question his overall judgment and, by extension, his ability to gauge the best interests of the child; • the father tagged the mother as insufficiently appreciative or supportive of Canadian culture : “[The mother] intentionally takes [our son] away from his Canadian culture [via] parental alienation that demonizes me as Canadian.” However, he did not provide any specifics of this “demonizing” behaviour e.g. what words or actions, in what contexts, when, how often, or with what effect on their son? • the father did not rebut the mother’s assertions about his explosive temper .

On this aspect, I note his conduct at the opening of the February 28, 2020 special application . During the mother’s counsel’s opening submissions, the Father muttered, somewhat under his breath, “bitch.” I asked him to repeat what he had said; with some reluctance, he admitted making that remark about the mother’s counsel. I asked him to step out of the courtroom to compose himself, advising that court proceeding require civilized and respectful behaviour by all participants.

At this, the father explored, shouting (in part) that “you bring immigrants here … they use the culture against me … I am a white person … I am a Canadian, and you [meaning me] should be hung [3] for treason.” The father exited the courtroom in the company of sheriffs and, though invited to return after composing himself, left the courthouse, not participating further in the application. [4] (The father did not present evidence of any post-court-incident anger-management or other counselling aimed at eliminating or minimizing the risks of future eruptions); and • neither did he offer any evidence countering the mother’s assertions of his venomous anti-immigrant, anti-Filipino and generally anti-Asian (and necessarily anti-the-mother-here) views , reflected in the above-quoted Facebook posts and email messages.

Synopsis of “pro” and “con” shared-parenting factors here [ 19 ] In this case, the “pro” factors include the (presumed) different and important interests and capabilities of the parties to be passed on and shown to the child; shared parenting possibly enhancing the child’s contact with the father’s (Canadian) cultural background (albeit the father did not establish that the mother has in fact “demonized” or otherwise under-supported the child’s appreciation of Canadian culture); and increased time for the child with the father’s family . [ 20 ] I note that such objectives might also be achieved, albeit to a lesser degree, via restored access for the father. [ 21 ] The “con” factors here include the parties being and having been in very substantial conflict ; their inability, to date, to cooperate for the betterment of the child; their inability to communicate effectively at any level; the noted absence of any kind of parenting plan from the father; the father’s poisonous views of “immigrants, Filipinos, and Asians” (which views, at present, seem to preclude any realistic chance of him working cooperatively with the mother on any dimension of parenting); and, in any case, the need I see for some kind of ramp-up period in reconnecting the child with the father .

Racial factors (bi-racial child, father’s offensive views) [ 22 ] Before concluding the “shared parenting or not” analysis, I examine some cases instructive in gauging the significance and impact of the racial factors here. [ 23 ] In Van de Perre v Edwards [5] , about contested parenting of a bi-racial child, the Supreme Court of Canada held that each parent’s relative appreciation and support of the other’s racial or cultural heritage may be a relevant factor: … A child should be with someone who fosters the relationship between him or her and the non-custodial parent. … the importance of [race] will depend greatly on many factual considerations … the question is which parent will best be able to contribute to a healthy racial socialization and overall healthy development of the child.

This question is one of fact to be determined by the courts on a case-by-case basis and weighed by the trial judge with other relevant factors. … [one factor is] which parent will facilitate contact and the development of racial identity in a manner that avoids conflict, discord and disharmony . … … Here … we have two biological parents [as in the present case], each of whom shares a part of the race and culture of the child [here, Canadian and Filipino]. Of these two biological parents, one will be granted custody and will be granted access.

The result is that [the child in question] will have exposure to both sides of his racial and cultural heritage. There was no evidence introduced to suggest that greater exposure to one’s racial background through custody as opposed to access is in the better interests of the child in every case.

Race can be a factor in determining the best interest of the child because it is connected to the culture, identity and emotional well-being of the child . … it is generally understood that biracial children should be encouraged to positively identify with both racial heritages. … It is important that the custodial parent recognize the child’s need of cultural identity and foster its development accordingly.

… Without evidence [e.g. on such matters as “racial identity by reason of skin colour or of race relations in the [community orcommunities in question], or of the racial awareness of the [parties] or of their attitudes concerning the needs of the child with regard toracial and cultural identity”, per para 42], it is not possible for any court … to make a decision based on the importance of race.[emphasis added] [24] I note that Bill C-78 (amendments to the Divorce Act anticipated to take effect March 1, 2021) includes, in new ss. 16(3), acatalogue of “best interests of the child” factors and that one is “the child’s cultural, linguistic, religious and spiritual upbringing andheritage.” [25] Concerning allegations of racist speech or behaviour by a parent, the following cases are helpful.

In Filipovic v Najjar[6],where the father was seeking access, Gilmore J. criticized racist comments expressed by both parents: The communication between the parties by text during their relationship is nothing short of shocking. They were aggressive, insulting,racist, and cruel to each other. Their relationship can only be described as turbulent and, frankly, dysfunctional. The father wanted the court to be clear that he took responsibility for his actions, both in terms of the criminal matter and hisinsulting texts to the mother.

He was ashamed of his actions and concerned about how the drugs he was taking at the timeaffected his personality and fuelled his inappropriate behaviour. He concedes that his relationship with the mother was toxic and that he used foul language towards her, sent her inappropriatephotos and barraged her with racist and sexist remarks. His texting was harassing and insulting. His relationship with themother was a dark one and uncharacteristic of how he acts when he is not around her. However, he has stopped using drugs and moved back with his parents in May 2018.

He is focused on obtaining his MBA and living ahealthy and drug free lifestyle. His parents are supportive of him and his efforts to gain access to his daughter. The father has been in counselling since March 2018. He was also required to attend the PARS program (a form of angermanagement counselling) as a result of his criminal convictions. He has attended numerous parenting courses and has engagedin self-study on caring for infants and toddlers. The father denies that he assaulted the mother. In fact, he deposed that in April 2017 the mother assaulted and scratched him.

She alsocontinuously threatened to abort their child which was very stressful for the father. The father acknowledges that his communicationswith the mother could have been perceived to have been harmful. He has apologized and acknowledged his ill-advised behaviour.He did not intend to hurt or harm the mother. ... The mother cannot gloss over her own erratic and bizarre behaviour during the relationship and focus solely on the father. Further, I am not satisfied that during the short time the father and mother were together after the child was born that the father’sparenting was lacking.

His evidence was that he tried to parent but was not “allowed” to by the mother. That attitude on the part of themother appears to persist. There is no evidence that the father’s bizarre behaviour extended to the child. He has taken courses and is intent on learninghow to be parent. He is in therapy and appears to have accepted that he needs help. On the other hand, there is no evidence thatthe mother has taken any parenting courses or is in therapy despite the fact that the text messages she sent to the father could berepresentative of an unbalanced personality.

In short, there is no evidence that the father’s previous unacceptable conduct impacts on his ability to parent. On the contrary,he has taken steps to ensure this will not be the case. He has accepted criminal responsibility for his actions and served his sentence. The focus must now turn to the child whose needs appear to have taken a back seat to the blaming between these parents. I do not agreewith the mother’s counsel that the maximum contact principle does not apply because there is no relationship to preserve. In fact, it istrite to say that contact with both parents is essential for a child’s development.

It is in the child’s best interests that she have theopportunity to know her father and have a relationship with him. Further, all of the research in this area is consistent thatinfants and toddlers need regular interaction with both of their parents to foster and maintain attachments (see Schmidt v. Haley,2004 CarswellOnt 1149 (ONSCJ) at para 20 and 21). The mother’s attitude towards the father’s culture and religion cannot be labelled as anything except racist and uninformed.

Herinsulting texts to the father about his “Muslimness” are nothing short of shocking given the mother’s education and integrationinto Canadian culture. The mother’s intolerant views should not be allowed to impact the child. I agree with the father’s counselthat the child should not be denied the opportunity of learning her father’s identity and culture which she shares. As per Van de Perre v.

Edwards, 2001 SCC 60 , [2001] 2 SCR 1014 at para 40, “Race can be a factor in determining the bestinterests of the child because it is connected to the culture, identity and emotional well-being of the child.” This child is in the fortunate position of having parents from two different cultures. The child’s development requires that she beexposed to both. [emphasis added] [26] See also Catholic Children's Aid Society of Toronto v.

NN[7], where Zisman J. found that a father’s racist denunciation of afamily-service worker assisting the family was relevant to gauging the nature and extent of his access to his children: The father does not appreciate that making disparaging comments about the family service worker puts the children, who have agood relationship with her, in a loyalty bind and is another example of an increase in conflict. [394] I have no doubt that the father loves the children. At this time, it appears to be in the children’s best interests to continue to have

contact with the father but if he persists in this behaviour [including the racist comments] there will need to be a consideration as to whether or not access needs to be terminated. [supervised access order] [emphasis added] [ 27 ] In RC2 v AA1 [8] , a guardian caring for a bi-racial young child was characterized as unfit, in part on the basis that he was a racist, largely for having twice used a particularly offensive and racially-charged term to describe the child. O’Connell J. rejected that characterization of the guardian.

She emphasized that he “ acknowledged that the word was wrong” and that he has “sincerely acknowledged this at trial. ” [ 28 ] In Merriam v McGee [9] , Sparks Fam Ct J. decided parenting of a bi-racial child where, among other factors, the “African- Canadian” mother charged that the “Caucasian” father’s family subjected the child to racial slurs.

She observed (in part): … If racial matters are not properly and meaningfully addressed by parents, there is the potential to cause harm, perhaps irreversible long-term emotional harm , to a child. … In my view, even though race is an artificial social construct it translates into different daily realities for an African Canadian and a Caucasian. … … if [the child’s] dual racial heritage is not handled sensitively and wisely by both parents, there is a real possibility of that the child will be further confused about her heritage .

Perhaps … race has as much to do with cultural practice as with the colour of one’s skin. If the parents to not come to grips with [the child’s] dual racial heritage, I foresee a measure of emotional confusion for this young child. Confusion which is clearly not consistent with her overall best interest. [emphasis added] [ 29 ] Sparks Fam Ct J. ordered continued shared parenting on various conditions, including: [The father] shall ensure [the child] is not in the presence of relatives, or other individuals, who may use racially, derogative and demeaning language in front of the child .

In an effort to foster positive self-esteem in [the child], [the father] is instructed to obtain reading material (Kwanza, etc.) and appropriate videos, etc. on how to discuss and educate [the child] about her African Canadian heritage. [emphasis added] [ 30 ] In “ Race is Not a Determinative Factor”: Mixed Race Children and Custody Cases in Canada [10] , Boyd and Dhaliwal offer the following helpful comments: In other cases, a parent may allege that the other party is a racist, but it will not be a factor in the determination if the judge does not believe the allegations are true or material or if there is an absence of evidence of racism . … We are not suggesting that a racialized parent is inevitably the parent who is best suited for primary care or custody of a racialized child.

Instead, we suggest that it is key for any parent seeking custody to be able to demonstrate their ability to foster the healthy development of a child’s multifaceted identity.

This multifaceted identity may sometimes include multiple racial and cultural backgrounds. … some of the case law seems to be going in this direction; when courts do look at race, they frame the issue in terms of which parent will be better able to deal with issues of race that may come up, and this may or may not be the racialized parent , [per Van de Perre ], which [case] talked about which parent would “ best be able to contribute to the child’s healthy racial socialization and overall healthy development .” [emphasis added] [ 31 ] In Race and Child Custody in Canada: Its Relevance and Role [11] , Carasco helpfully notes: … what positive role could “race” have in a best-interests determination?

As with any other type of need a child has, if there are race- related needs e.g. with respect to identity issues or self-esteem or with respect to contact with relatives, these should be raised by the parties or the judge. … How much significance should be given to the “race” related needs? As with every other relevant issue within the best-interests principle, the weight accorded to “race” related needs should depend on all the circumstances surrounding the child. It is submitted, however, that the “race” of a child should never, on its own, be the determinative factor in a best-interests decision .

Many elements go into fostering a positive environment for a child, not the least of which is love and loving relationships. In cases where both parties are competent and caring in relation to all the other needs but one party, perhaps the visible minority parent, is better able to respond to race-related needs, the “race” issue should tip the balance towards this party.

This is because it is most likely that there will be ongoing issues related to a child’s racial identity and the child will benefit from the proximity to and relationship with this party. … Although the needs of a child in [bi-racial] circumstances arise from the significance given to skin colour in our society, this analysis does not necessarily favour the party whose skin is most like that of the child. There is no evidence to indicate that needs arising from the racial identity of the child can only be met by a person from the same “racial” background as the child.

When considering the issue of white parents raising a child of colour, the critical pre-requisites vis-à-vis “race” appears to be: openness, a willingness to accommodate the needs of the child, and an acknowledgement of the realities of a race-conscious society. The literature on biracial children in the United States points to the importance of biracial children positively identifying with both of their racial heritages in developing positive self-images .

The best-interests principle demands a focus on the child and on any and every aspect of the child’s persona and circumstances that may enhance the well-being of that child.

In this context, “race” is always relevant but the significance of race-related issues within the context of a best-interests determination will depend on the situation of each child . [emphasis added] Applying the guidance of these cases and articles here [ 32 ] I first note that the only evidence bearing on the impact of race or race-related communications here is that reflecting the father’s stated animus towards some immigrants and towards Filipinos and Asians generally. By definition, and in any case, as reflected in the evidence here, that animus extends to the mother herself.

[ 33 ] Drawing on the possible factors identified by the SCC in Van de Perre , I note the absence of evidence on the child’s racial presentation, the state of relations between the Filipino community and other communities in Edmonton and Alberta generally, the racial awareness of the mother (i.e. beyond her objections to the identified views of the father), and the parents’ respective attitudes concerning the possible needs of the child with regard to racial and cultural identity (again, beyond the mother’s noted objections). [ 34 ] No evidence showed that the father’s views were expressed by him to, or were overheard by or otherwise communicated to, the child. [ 35 ] While not finding any basis to conclude that the mother has in fact undercut the child’s connection to Canadian culture, I understand the father’s desire to ensure the child’s strong connection with that culture.

Some cases described by Boyd and Dhaliwal (pp 368-369) feature the encouragement of bi-racial children to see themselves as having more than one racial or cultural dimension, which “mix together.” [ 36 ] However, I find it hard to understand, and in any case reject the father’s racist denunciations of Filipinos and Asians generally and his denunciations of immigrants. His repugnant and radioactive comments blasted a wide swath of Canada’s population and the world’s peoples, with no right-thinking justification.

Even more unfortunately, the sweep of his blasts included the mother here and has the potential of infecting his views of the child, who is half-Filipino (and thus half-Asian). [ 37 ] At minimum, the father has shown that, absent a change of heart, he cannot be trusted to support and encourage the Filipino dimension of the child’s life. [ 38 ] On the other hand, I see nothing in the evidence to cast doubt on the mother’s willingness to support and encourage the child’s participation in Canadian culture. (Given no evidence from the father about any particular steps by the mother to diminish or denigrate “Canadian culture” or to swamp the child in a tidal wave of Filipino culture, language, traditions, and ways, one might wonder whether a child growing up in Edmonton, Alberta is likely to be deprived of “Canadian culture.”) [ 39 ] I do note evidence in one of the father’s earlier (March 15, 2019) affidavits showing him as then attending, and intending to continue attending, certain therapy “to learn how to manage [his] reaction to the [mother’s] behaviours.” The same affidavit reflected his positive participation in a 2018 “Filipino Community Support and Cultural Integration Program”, after the child’s birth. [ 40 ] I also see a glimpse of daylight in the darkness of the father’s views, namely, his described acknowledgement that a particular Asian-Canadian lawyer actually “did a good job” and changed his opinion of “all asian evil.” In other words, he showed, or at least presented, a willingness to change and, in particular, to view people on their individual merits, at least to some degree. (On the other hand, the beneficiaries of this reported change may be limited to members of the Asian-Canadian community who do something useful for him.) [ 41 ] However, the evidence did not reflect any apology by the father for his offensive and harmful comments to the mother or to the mother’s counsel or any acknowledgement that his toxic Facebook posts were unacceptable.

No evidence showed any particular general self-questioning by the father of his described views and their place in 2021 Canada (all aside from whether they should ever have had a place here or anywhere). [ 42 ] As far as I can tell, the father’s overall views on “immigrants, Filipinos, and Asian” remain toxic and offensive. How does he square those views with his own child’s identity as half-Filipino i.e. half-Asian? Does he accept his child for who the child is? Is he prepared to support the child in developing both (maternal and paternal) dimensions of the child’s life?

Does he have time for any dimension of Filipino life? Does he not realize that his views, if communicated to or otherwise discovered by his child, have the potential to cause emotional and psychological distress to the child? Or that his views might unconsciously influence how he treats the child? [ 43 ] On the available evidence, I am not satisfied that the answers to any of these questions are presently yes.

Conclusion on father’s application for shared (or alternatively full) parenting [ 44 ] Returning to the above gauging of whether shared parenting would be appropriate here, I find that the father’s offensive views are a significant counter-indicator.

With the father under the influence of such views, and in light of the other identified negative factors (which, all combined, heavily outweigh the “pro” factors), I do not see any prospect of shared parenting working here. [ 45 ] Moreover, the father has not made any real case for why full parenting should shift to him , and the evidence falls largely against such a shift.

Reinstatement of access and access terms [ 46 ] The mother has proposed that the father start with three months of supervised access (him paying the costs), followed by a review of the supervision notes and, if no blemishes and the supervision agency determines that the child is comfortable with the father, the start of weekly “in the community” visits (four-hour blocks) for two months and, if no blemishes, an expansion to seven-hour blocks and other visits “as agreed” and, eventually (on his completion of anger-management and parenting courses), the start of weekly overnight visits, until further review . [ 47 ] I reinstate the father’s access, but on different terms: • I first note that the mother did not cross-apply for changes to the father’s access , which (as noted) had been suspended pending the conclusion the criminal-law process, which has occurred, with the charge against the father stayed. (Her cross-application was limited to a severance-of-corollary-relief request, discussed below);

• despite the absence of a formal cross-application on access, I recognize that, given the long period of separation here (since summer 2019), immediate restoration of every-second-weekend-with-overnights access is not in the child’s best interests.

Instead, I direct a staged reintroduction of access , starting with five-hour blocks on Saturday afternoons between 12 noon and 5 pm, every second week, starting this coming weekend (January 30, 2021) and continuing February 13 and 27, March 13 and 27, and April 10, followed by six weekends (April 24/25, May 8/9 and 22/23, June 5/6 and 19/20 and July 3/4) of one-night overnight access (Saturdays from 11 am until Sundays at 5 pm), followed by the resumption of the ordered-by-Bercov-J access of every-second-weekend access (Friday 5:30 pm to Sunday 5:00 pm), starting July 17/18; • one precondition to the resumption of overnight visits : given the absence of information of the father’s present residential circumstances, I direct that he provide, via email to the mother and copied to my assistant by no later than 4:30 pm on Thursday, January 28 th , 2021 , his address, type of residential accommodation (e.g. house, condominium, apartment), and name(

s) of roommates or other co-dwellers (if applicable); • I am not ordering supervised access here, as I do not see any material (or in any case unmanageable) risk to the child arising from revived contact with him, with the Crown’s non-pursuit of the criminal charges, those charges being the sole basis for the access suspension, no evidence that the father is unable to provide safe access parenting of the child, no evidence that the father’s described views have spilled over, directly or indirectly, into his interactions with the child, and no clear evidence that his anger-management issues have spilled over into the parenting sphere.

Viewed differently, it is the child’s best interests to have resumed contact with the father after the long separation here; • I direct the father to refrain from expressing, in the presence or hearing of the child, any negative comments about immigrants, Filipinos, or Asians – in fact, about any of the world’s peoples i.e. negative comments that generalize about any particular group and assign those generalizations to any given member(

s) of the group – in other words, comments that deny any person their individuality and opportunity to be treated fairly, based on their own words and deeds; and • I direct the father to pursue, or continue pursuing, the counselling described in para 7 of his March 15, 2019 affidavit (aimed at improving his interactions with the mother) or equivalent counselling, starting as soon as possible and, in any case, no later than the end of February 2021 and continuing to at least the end of August 2021 (with a minimum of at least one monthly session throughout that period), with any expenses to be paid by him. [ 48 ] The balance of Bercov J.’s order, concerning access details and other aspects, shall continue to apply, effective immediately. [ 49 ] Finally, on parenting, I direct that the parties comply with all applicable Covid-19-related public-health directions as they may bear on the resumption and exercise of access by the father.

D. Severance [ 50 ] The mother cross-applied for severance of corollary relief (issues of child support, spousal support, and family property) from the divorce application, which would have the effect of allowing her to request a divorce from the father without any impediment arising from any outstanding corollary-relief matter. [ 51 ] The father did not address this aspect in any of his submissions to the Court. [ 52 ] I invite any submissions the father may have on this aspect, in writing, via email to my assistant and copied to the mother, by 4:30 pm on Monday, February 1, 2021 .

If I do not hear from him, I will assume that he has no objection to a severance order. [ 53 ] If he objects and provides reasons, I will consider his objection and reasons in deciding the severance aspect. E. Conclusion [ 54 ] Too many counter-indicators exist here to order a shift to shared-parenting or full parenting by the father.

One of the most significant is his offensive and unacceptable communications and messages (described above), which have created a wide gulf between him and the mother and which, in combination with the other counter-indicators, make it practically impossible for any kind of true sharing of parenting to occur. [ 55 ] Whether that gulf can be bridged is largely up to the father, who may decide to change his views or, in any case, that airing his views to the mother or in any public fashion might only widen the gulf between them and, potentially, damage his relationship with the child and, most importantly, damage the child’s self-image and self-esteem. [ 56 ] I encourage the mother to support (or continue supporting, as applicable) the child in developing and appreciating both dimensions of the child’s bi-racial culture and heritage. [ 57 ] The best interests of this child require the support and encouragement of both parents in all dimensions of life, including the appreciation and enhancement of the child’s dual culture and heritage. [ 58 ] I will remain seized of any future applications on this file. [ 59 ] The parties shall bear their own costs.

F. Closing note

[ 60 ] I apologize to the parties for the delay in producing this judgment, which I had been aiming to complete by the end of November 2020. Heard by way of written submissions received July 23 rd , September 21 st , 22 nd , 23 rd , 26 th and 27 th and December 23 rd , 2020 Dated at Edmonton, Alberta this 26 th day of January, 2021 . M. J. Lema J.C.Q.B.A.

Appearances: Monica Wang Duke Law Office for the Respondent (Cross-Applicant) Mother PJS Self-Represented Litigant the Applicant (Cross-Applicant) Father _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice M. J. Lema _______________________________________________________ In paragraph 47, bullet 5, after ... refrain from expressing,” in the presence or hearing of the child ” any negative comments ... was added [1] For a brief review of the proper contents of affidavits, see IMD v RAD , 2019 ABQB 963 at paras 94-97 .