ZWN v PT, 2021 ABQB 876

Court of Queen’s Bench of Alberta Citation: ZWN v PT, 2021 ABQB 876 Date: 20211104 Docket: FL06 03543 Registry: Lethbridge Between: Z.W.N. Applicant - and - P.T. and S.J.R. Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice C.L. Kenny _______________________________________________________ [ 1 ] This is a matter involving guardianship, parenting and decision making with respect to KKN, the child born in 2016 (“K”). [ 2 ] The Applicant, ZWN is the birth father of the child K. The Respondent, PT is the child’s aunt through marriage.

The Respondent SJR is the birth mother of the child but has not been involved in these proceedings. Background

[ 3 ] When K was born, another man was listed as the father on the birth certificate. This man had been in an on-again/off-again relationship with the birth mother for many months before the conception and birth of the child. [ 4 ] As a result of medical complications around the birth, and other concerns, the birth mother was unable to care for K and placed her into the care of PT. A year later, PT applied for and was granted joint guardianship of K as well as primary day to day care.

At that same time, the man listed as the father on the birth certificate officially bowed out of the picture as he did not believe he was the father of the child. [ 5 ] In April of 2019, the birth mother’s brother, who is a friend of ZWN, sent a current picture to ZWN of K saying she looked just like ZWN. ZWN and the birth mother had a one night sexual encounter on the long weekend in May of 2015. [ 6 ] ZWN did not know he could have been the birth father. He went to the hospital when K was born with his friend, the birth mother’s brother, and with the man named on the birth certificate.

He had calculated the time in his head between the encounter and the birth, but they did not match up. He did not know the child was born very prematurely. “Everyone” assumed the other man named on the birth certificate was the birth father. He didn’t think anything more about it at the time. [ 7 ] As soon as he was sent the picture of K by his friend, he immediately went to his mother, excited that he could be the father. He tried to reach out to PT to discuss it with her but she would not respond to him.

Eventually his mother was successful in contacting PT who indicated that they would have to go through the courts to see if ZWN was the birth father. An application was made for DNA testing which confirmed ZWN was the father. He then applied for guardianship and parentage which were granted by consent in February of 2020 along with joint decision making. PT carried on as the primary parent. [ 8 ] Efforts to work cooperatively in integrating ZWN into K’s life were strained. He sought more time with his daughter but PT was reluctant to grant him more time. She acted as a gatekeeper which frustrated ZWN.

PT required ZWN’s mother to be present at all of the early limited outings. She would not grant any overnight visits for 6 months. When ZWN was laid off at the start of the pandemic, PT would not allow him more time with K while he was home, instead choosing to send K to a day home when she was working. [ 9 ] Finally, in May of 2020, ZWN brought an application to terminate the guardianship of PT. An order was granted whereby the parties shared parenting 50/50 over the summer of 2020 which arrangement was confirmed and continued in the fall of 2020. A Practice Note 8 evaluation was ordered by the court.

The Report was delivered in January of 2021 but unfortunately the matter did not resolve as a result of the recommendations therein. [ 10 ] It is unfortunate this matter ended up in a trial. The evidence is clear that the tension between PT and ZWN is adversely affecting K. It is not getting better despite the move to 50/50 parenting time nor has it improved as a result of the recommendations in the PN 8 report. In fact, upon release of the PN 8 report, PT launched a “Go fund me” campaign to raise money for the continuing legal battle using a photo of K in this very public online campaign.

It was only stopped when ZWN insisted that K’s image be removed. [ 11 ] What is clear is that K loves both parties very much. Her father has now been involved in her life as a parent for approximately two and a half years and she loves being with him and his extended family. She also clearly loves PT who is the only parent she had until 2 ½ years ago. [ 12 ] The problem appears to be the concern and fear PT has in losing her place in K’s life.

She has been very resistant to ZWN entering K’s life at all and then as time has progressed, has acted as a gatekeeper to any additional time he might have with his daughter. ZWN has had to bring applications in court at each stage in order to get any additional time with his daughter. It has been a struggle. [ 13 ] It is completely understandable and would be the reaction of most people in her position at the beginning, that PT would view ZWN’s entrance into K’s life with the concern of a protective parent.

However, when it became apparent that ZWN was the birth father, that he wanted to play a role in K’s life, that he voluntarily offered to pay support when he found out he was the father, that he took up his parenting responsibilities in all aspects with enthusiasm, one would expect that PT would be happy for K and be supportive of the relationship. This has not been the case. Practice Note 8 [ 14 ] Ms. Ailon completed a PN 8 Psychological Assessment of Parenting. Her final report was delivered in February of 2021.She met with the parties and others in the fall of 2020. She gave evidence at the trial.

Her report and investigation was extensive. The purpose of the report is to assist the court with background, psychological assessments and recommendations on parenting from an expert with a view to determining the best interests of the child and her future developmental needs. As Ms. Ailon indicated in her evidence, she also sees the report as an educational tool for the parties to assist them in making any changes necessary to best meet the needs of the child. She did not opine on the issue of guardianship which is a legal issue. [ 15 ] In general terms, Ms. Ailon’s recommendations were for:

a) A 10/4 split in parenting time with PT having every second Thursday to Monday morning as well as alternate Thursday evenings and ZWN having the rest of the time;

b) ZWN to assume primary decision making with respect to K;

c) Recommendations on activities and holiday time;

d) Recommendations on therapeutic support and parenting coordination. [ 16 ] When the report was released, ZWN gave evidence that he was content with the recommendations and was prepared to follow through on them. PT was not and resisted any change to the parenting order in place at the time which was 50/50 pursuant to earlier court

order. Position of the Parties [ 17 ] ZWN seeks to have the guardianship of PT revoked. He is otherwise agreeable at the present time with the parenting

schedule put forth by Ms. Ailon but would like to see an automatic review of this arrangement rather than relying on a change in circumstances to see whether the parties can parent in an amicable manner to reduce the stress on K. If it is not working in a set period of review, then it would be open to the court to change it. [ 18 ] PT is of the view that she is the stable person in K’s life and that she should have the primary parenting of K with exclusive decision making and that ZWN could see K on alternate weekends.

She also indicated that she would provide additional time to ZWN when she was working and he had the time to care for K. She is of the view that she is a proven parent and that K will continue to do well in her care. She sees ZWN as an unknown and that it would be risky to provide primary care and decision making to him as he does not have a track record as a parent. She is also seeking a child support order. Both parties agree that they cannot continue to make joint decisions as that is not working.

Parenting to Date [ 19 ] As indicated earlier, it has been a struggle for ZWN to be able to take on a parenting role and get additional time with his daughter. PT viewed ZWN very negatively right from the very beginning. She did not know him but “heard” things. Her negative view of him continued despite no evidence to support it whatsoever. She expressed those negative views to others orally and in writing. She created a journal which continues the negativity. She blames every negative thing affecting K on ZWN coming into her life. [ 20 ] Ms. Ailon opined on this attitude.

While not unexpected at the beginning, Ms. Ailon indicated that PT continued to view ZWN negatively despite being challenged on her views and the lack of any substance to those views. This continued even after he became very involved in K’s life and proved his care and commitment. He acted immediately on finding out that he may be the father. He paid support. He sought DNA testing. He engaged a child therapist to assist him in the best way to integrate into his daughter’s life. He took the PAS course. He attended mediation with PT.

He was respectful of PT’s requirements initially for his engagement with his daughter. Despite all of this, PT continued to “gatekeep” with respect to his time with his daughter. This included an attempt in June of 2020 to remove his joint decision making and his overnight access to his daughter which had been in place since about February of 2020.

In fairness to PT, this application may simply have been her defensive reaction to the application by ZWN to remove her as a guardian for refusing him increased time with his daughter. [ 21 ] There are a few matters of concern to the court in the parenting to date which in and of themselves do not determine this matter but which are more indicative of a pattern or personality profile as referred to by Ms. Ailon. [ 22 ] The first relates to medical issues. K was born prematurely, she was in the NICU for 14 days after birth and was born with an addiction to drugs prescribed to her birth mother. The discharge

summary recommends annual medical checkups. Although K had her first 4 immunizations shortly after her birth, she did not receive her 6, 12, and 18 month immunizations. She was not taken to a doctor for a checkup until after ZWN entered the picture and insisted on such. She was also diagnosed with constipation, a not unusual diagnosis in young children, after ZWN raised concerns with the doctor. PT refused to believe the diagnosis and was resistant to treating it instead blaming any bowel problems that K had on stress in seeing her father. [ 23 ] The second issue relates to extended family.

PT gave evidence that she looked after the birth mother’s other daughter frequently before K was born. She is 2 years older than K. In fact, at one point, PT was hopeful that Children’s Services would put that child in her care as well. That did not happen. Although the reasons are unclear, PT has made virtually no effort to have K meet and spend time with her maternal family including her mother, her sister, her maternal grandmother and other family members. There was some evidence that they reached out but were rebuffed.

Since ZWN has come into the picture, he has integrated K’s sister who is about 7 years of age, her maternal grandmother and various other cousins into her life along with his own family. K is also very close now with her paternal grandparents and other cousins. Parties Current Circumstances [ 24 ] PT currently works 2 full days a week and one half day, running her own business. She has 4 adult children, the youngest age 26, continues to reside with her. K goes to kindergarten in the mornings and to daycare in the afternoons. If PT is not working that day, she will pick K up from daycare or kindergarten.

She stays closer to home with K enjoying crafts, playing in the yard, going to the park as well as some gymnastics when she was age 3. [ 25 ] ZWN is employed as an equipment operator now. He lives with his common law partner and they were expecting a baby right after the conclusion of the trial. He has been able to bank hours over the summer so that he can carry those hours and the wages associated with them over into the winter when he expects to be laid off as the work is seasonal. This allows him to continue to receive a paycheque throughout the year.

He will be off for a few months upcoming and able to devote his full attention to K and his new baby. He does more outdoor activities with K including family camping. He also enrolled her in swimming lessons. His mother is a registered nurse who currently works from home and has helped ZWN out with K on a regular basis. K is very close to ZWN’s parents. Conclusion

[ 26 ] This is a very difficult case. It is unfortunate that the fact the parties do not get along very well or communicate well has affected K. She knows it and has said to the assessor “They should smile at each other. I would be happy if they would just get along”. [ 27 ] K is clearly well cared for, comfortable, secure and happy with both parties. Both parties love her and she loves them. They cannot however act cooperatively or make decisions jointly with respect to K. Most of this comes, in my view, from the “gatekeeping” imposed by PT. She finds it difficult to fully let ZWN into K’s life.

She fears losing K. This is evidenced in several ways. She would not consent to ZWN gradually increasing his time with K. He had to apply for 50/50 parenting for the summer of 2020 to the court and then when the fall came, PT would not agree to 50/50 continuing. ZWN made another court application which extended the 50/50. ZWN was laid off when Covid struck in the spring of 2020. He was at home everyday and asked for additional time. This was denied and instead, K went to daycare rather than to spend time with her father.

Although PT indicated in her evidence that she would provide ZWN with additional time were she to get primary parenting and decision making, she acknowledged that she had never, to date, offered him additional time with K other than what was court ordered. [ 28 ] PT will never lose K’s love. She has played a huge role in her life and stepped up to take on the care of a new baby when others were not able to do so. No matter what, she will always be a very important part of K’s life. [ 29 ] K clearly loves her father as well. She loves spending time with him and with the extended family.

She is excited about her new sibling. She has reconnected with her sister. Their bond, according to the assessor, appears very strong. [ 30 ] Having heard all of the evidence including the evidence of Ms. Ailon, and having considered the relevant factors in

section 18 of the Family Law Act , I am satisfied that Ms. Ailon’s recommendations as to parenting are appropriate in light of all of the evidence that I heard during the trial.

a) PT will continue to have guardianship with respect to K.

b) The parties will have a 10/4 parenting arrangement. K will spend alternate Thursdays after kindergarten/school to Monday morning at 9 am with PT as well as alternate Thursdays from after school until 7 pm. The rest of the time K will be in ZWN’s care.

c) PT will be responsible to take K To any scheduled activity on her parenting time and if unable to do so, then ZWN would be given the opportunity to do so.

d) PT would have K for one week in July and one week in August each year for vacation time.

e) ZWN will have sole decision making with respect to K and in particular, with reference to

section 21 of the Family Law Act , ZWN shall have the sole authority to: i. make all significant decisions affecting the child in the exercise of the powers and responsibilities of guardianship set out below and will inform PT about all significant decisions; ii. decide the child’s place of residence and to change the child’s place of residence; iii. make decisions about the child’s education, including the nature, extent and place of education and any participation in extracurricular school activities; iv. make decisions regarding the child’s cultural, linguistic, religious, and spiritual upbringing and heritage; v. decide with whom the child is to live and with whom the child is to associate; vi. consent to medical, dental and other health-related treatment for the child; vii. grant or refuse consent where consent of a parent or guardian is required by law in any application, approval, action, proceeding or other matter; viii. receive and respond to any notice that a parent or guardian is entitled or required by law to receive; ix. subject to the Minor’s Property Act and the Public Trustee Act , to commence, defend, compromise, or settle any legal proceedings relating to the child and to compromise or settle any proceedings taken against the child; x. appoint a person to act on behalf of the guardian in an emergency situation or where the guardian is temporarily absent because of illness or any other reason; xi. receive from third parties health, education, or other information that may significantly affect the child; xii. exercise any other powers reasonably necessary to carry out the responsibilities of guardianship.

f) Both parties should attend K’s scheduled activities regardless of whose care she is in at the time.

g) Father’s day will be celebrated with the father. If this falls on PT’s time, the parties will arrange for the father to spend a large part of the day with the father. On Mother’s day, if K is with PT, she will arrange for K to spend some time during the day with her step- mother. If she is with ZWN, he will arrange for K to spend a large part of the day with PT.

h) The parties will alternate Christmas day with ZWN to have Christmas day in 2021. Any other changes to the parenting

schedule to accommodate a holiday should be worked out between the parties. The parties will celebrate the child’s birthday on their parenting time.

i) This Order may be reviewed anytime after one year without the need to show a change in circumstances to ensure the provisions of this Order continue to be in the best interests of the child. [ 31 ] There is no order with respect to therapeutic support. The parties have the report of Ms. Ailon and her recommendations therein with respect to this issue and the court trusts the parties will take advantage of the recommendations of a parenting expert in this regard. Costs [ 32 ] If necessary, the parties may arrange an appointment to address the issue of costs within 45 days of this decision.

Heard on the 18, 19, 20, 21 and 22 nd days of October, 2021. Dated at the City of Lethbridge, Alberta this 4 th day of November, 2021. C.L. Kenny J.C.Q.B.A. Appearances: Ingrid Hess for the Applicant, ZWN Tyler Pollock for the Respondent, PT