Blake v Donald, 2021 ABQB 92

Court of Queen’s Bench of Alberta Citation: Blake v Donald, 2021 ABQB 92 Date: 20210208 Docket: 4801 178518 Registry: Calgary Between: Peter William James Blake Applicant - and - Erika Claire Donald Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction and Overview [ 1 ] In his application filed on August 27, 2020, Peter Blake (“Mr. Blake”) seeks a variation of the order of Kirker J. dated July 5, 2018, regarding his access to the parties’ child, H, born April 2017.

Erika Donald (“Ms. Donald”) also filed an application on September 2, 2020, asking to transfer this family law matter to the Province of Manitoba. [ 2 ] These applications were heard by me on September 15, 2020, as a one-hour family law Special Application. At the

conclusion of the hearing, I adjourned both matters to allow the parties additional time to exchange proposed access plans for the period January to June 2021. At the same time, I suspended the July 5, 2018 order of Kirker J and seized myself with these two applications. The parties appeared before me again on November 25, 2020, and a third time on January 19, 2021. At the conclusion of the hearing on January 19, 2021, I reserved my decision. These are my reasons for decision. Facts [ 3 ] The parties were married on July 2, 2017, and separated on January 3, 2018.

As previously indicated, there is one child of the marriage, H, born April 2017. While the parties were both living in Calgary at the time of H’s birth, Ms. Donald relocated to Brandon, Manitoba, with H in the summer of 2018. [ 4 ] Mr. Blake is a musician currently employed by the Calgary Philharmonic Orchestra (“CPO”), while Ms. Donald is a physician employed in the city of Brandon. Both parties face employment challenges and in the case of Mr. Blake, shifting employment realities, as a result of the current health pandemic. [ 5 ] On July 5, 2018, following a mobility trial, Kirker J granted Ms.

Donald’s application to relocate with H to Brandon. In an eleven-page order flowing from the mobility trial, Kirker J set out a very detailed access

schedule permitting Mr. Blake to spend time with his son. The Kirker order also dealt with the issue of ongoing child support and, specifically, a mechanism to account for both parties’ increased costs to facilitate Mr. Blake’s access. [ 6 ] The Kirker J order provided that the parties would work together to produce an annual parenting plan based on, amongst other things, their respective work schedules. Given the then very young age of H, the order set out a graduated access plan starting with daytime visits and then moving on to overnight stays during access visits.

Initially, the access plan accommodated the fact that H was still breast-feeding. While the order specified one specific weekend visit in Calgary in October 2018, the order otherwise contemplated extended weekend visits that would take place in Brandon, and which included some overnight visits. [ 7 ] The order also addressed the issue of holiday access. It provided that in the summer of 2018, Mr. Blake was to have daytime access in Brandon over the course of a period of seven days. In both 2019 and 2020, Mr. Blake was entitled to two, non-consecutive weeks with H in Calgary, Brandon or elsewhere.

For the summer of 2021, H was to spend two weeks with Mr. Blake during the month of July, and a further two weeks during the month of August. In the summer of 2022 and thereafter, Mr. Blake was to receive 4 weeks with H over the months of July and August, as agreed upon by the parties. Similarly, the CPO spring break was identified as an access week for Mr. Blake. Starting in 2019, he was given access to H in Brandon during this spring break week.

In subsequent years, this week was to be spent in Calgary. [ 8 ] The Kirker J order further provided that each parent would have access to H every other day via skype or Facetime while H was in the care of the other parent. [ 9 ] At the conclusion of the parties’ appearance before me on September 17, 2020, they reached an agreement regarding Mr. Blake’s access during the period September to December, 2020. Specifically, it was agreed, and subsequently set out in a consent order, that Mr. Blake would have access to H for one week during each of the months of September, October, November, and December, 2020.

The access in the months of September and November were to take place in Brandon, while the access weeks in October and December were to take place in Calgary. The order also provided for Mr. Blake to have skype access to H every Monday evening at 7 p.m. (Alberta time) and every Thursday and Saturday morning. [ 10 ] Following the November 25, 2020 court appearance, both parties submitted a proposed access plan covering the period January 2021 to June 2022. Mr. Blake’s plan proposes continuing monthly access of one week’s duration in the location of Mr. Blake’s choice.

This plan contemplates that all access will take place in Calgary, save for possible access visits in Brandon during the week of January 11-18, 2021, and the week of March 29-April 5, 2021. His proposal also incorporates some of the terms of the Kirker J order regarding summertime access in 2021, 2022 and 2023. [ 11 ] In support of his proposed access plan, Mr. Blake retained Eileen Ailon, a child psychologist, who prepared a report for Mr. Blake that was submitted to the court and provided to Ms. Donald. Ms. Ailon did not consult with Ms. Donald in preparing the December 15, 2020, report, and had no access to H.

In her report, Ms. Ailon concludes: Peter Blake’s proposed parenting plan of monthly parenting time with [H], which extends for a week at a time, presents as essentially consistent with the literature on what is best for young children in such relocation situations. It is important to note that this plan can continue through the child’s formal schooling, as there is generally a long weekend in every month that is frequently extended through Professional Development days, or half days at school.

Additionally, many parents who see less of their children due to relocation, are able to see the children through proportionally longer stays during school holidays. [H] is become accustomed to spending a week at a time with his father which presents as contributing to [H] reportedly doing his father in a more normal and functioning parenting role and with their developing a securely attached relationship.… If [H] is showing behavioural challenges with his mother, when he returned from time with his father, then the parents should work together to mitigate such challenges.

There are many ways in which parents can help a young child transition move more easily from one home to the other. Transitioning, in the best of situations, is generally taxing for children. However, moving from one parent’s care to the other parent’s care is not harmful to children, if done with the best interests of the children always kept at the forefront. [ 12 ] Ms. Ailon had previously been retained as a parenting by both of the parties in February 2018, in conjunction with Ms. Donald’s then plan to relocate to Brandon. Based on her experience working with both parents at the time, Ms.

Ailon described them as “intelligent, capable and loving parents.” [ 13 ] Ms. Donald’s proposed access plan covers the period January to June, 2021. As such, she proposes one week of access in

Calgary during the CPO Spring Break. In addition, she committed to providing other generous access to Mr. Blake in Brandon for a maximum of two to three days and nights per visit. She also expressed a willingness to extend these Brandon visits if Mr. Blake elected to drive to Brandon given the reduction in air service as a result of the health pandemic. [ 14 ] Looking beyond the period of January to June 2021, Ms. Donald is agreeable to Mr.

Blake having a total of four weeks of access to H in Calgary per year, specifically one week in July; 1 week in August; one week alternating between Christmas and New Year’s; and one week during the Calgary Philharmonic Orchestra spring break. I note that this is consistent with the terms of the Kirker J order. Analysis [ 15 ] This is a very sad case involving two highly competent and loving parents who are simply unable to work together at the present time in furthering the best interests of their child.

Based on my extensive interactions with the parties over the course of more than 10 hours in court, I can say without hesitation that both Mr. Blake and Ms. Donald are dedicated and loving parents who express an unreserved commitment to their child. However, notwithstanding the passage of more than three years since their separation, they manifest a deep distrust for one another that seriously interferes with their ability to work together and effectively share in the parenting responsibilities relating to their son. The personal toll that this conflict has taken on both Mr. Blake and Ms.

Donald was palpable throughout these proceedings. [ 16 ] There is no dispute between the parties that the impact of Covid-19 on Mr. Blake’s employment and on his ability to exercise access to H represents a material change in circumstances since the granting of the Kirker J order in 2018. In March, 2020, the Government of Alberta declared a state of emergency relating to the Covid-19 pandemic then impacting Canada and, indeed, the entire world. A similar state of emergency has been declared in Manitoba.

Varying levels of restrictions have been imposed in both Alberta and Manitoba and elsewhere since the start of the pandemic. These restrictions impact such matters as foreign and domestic travel, indoor and outdoor public gatherings, public access to retail outlets, restaurants, and other goods and services normally readily available to the public. [ 17 ] On the evidence before me, it is clear that the health pandemic has had a significant impact on Mr. Blake’s employment with the Calgary Philharmonic Orchestra, as well as his ability to access air travel between Calgary and Brandon.

As such, I am satisfied that a review of the access provisions set out in the Kirker J order is appropriate in the circumstances. However, I place significant weight on the very detailed access plan set forth in the Kirker J order, a plan that was carefully crafted with the active input of both parties following the mobility trial. [ 18 ] Before turning to consider the respective access plans submitted by the parents, I want to address the content of Ms. Ailon’s report submitted by Mr. Blake. First of all, I note that counsel for Ms. Donald raises concerns with Mr. Blake placing Ms.

Ailon’s report before the court. Noting that Ms. Ailon appeared as a friend of the court during the June 2018 mobility trial, counsel for Ms. Donald suggests that Ms. Ailon should be subject to cross-examination if the court is to receive her report. Counsel for Ms. Donald also raises the possibility of introducing reply evidence from Dr. Terry Singh, an expert retained by Ms. Donald in conjunction with the 2018 trial. [ 19 ] While I agree with counsel for Ms. Donald that Mr. Blake’s decision to engage Ms.

Ailon was unexpected and, in some respects, went beyond the scope of the court’s request to the parties to exchange proposed access plans, no application was ever made to cross-examine Ms. Ailon on her December 15, 2020, report. Likewise, counsel for Ms. Donald never asked for time to retain their own expert. Under the circumstances, and in light of Ms. Ailon’s familiarity with the parties, I am prepared to consider the contents of her report. [ 20 ] I accept Ms.

Ailon’s opinion that a monthly parenting plan that provides for access of one week per month is consistent with the literature on what is best for young children in situations involving the relocation of a parent. What is not clear to me, however, is whether or not Ms. Ailon was aware of Mr. Blake’s plan to have virtually all of this monthly access take place in Calgary, thus necessitating significant and recurring travel time for the child. Given Ms. Ailon’s view that transitions, even in the best of circumstances, are taxing for children, I note that the transitions associated with Mr.

Blake’s plan involve 17+ hour car journeys in which H would be required to be strapped into a car seat. [ 21 ] Ms. Ailon’s report must also be viewed in light of the fact that she relied entirely on Mr. Blake’s account of his parenting time with H, including details relating to transition issues associated with his week-long access visits in September, October, November and December, 2020. While I do not question Mr. Blake’s description of his perception of what took place, he obviously did not observe H once the visits were over and H was back in the care of his mother. Ms.

Donald’s evidence regarding these transition periods paints a very different picture from that related by Mr. Blake. It is obviously not possible for me to resolve this issue without a trial or the receipt of viva voce evidence. For the purposes of this application, however, I find that Ms. Ailon’s findings and conclusions must be viewed in light of the fact that she did not have any opportunity to review any of these events with Ms.

Donald or to observe H in the care of either parent. [ 22 ] Ms.Ailon’s suggestion that “H is becoming accustomed to spending a week with his father...” seems somewhat premature given the very limited number of occasions when the child has been in his father’s sole care for a week. There were two instances in October and December when H spent an entire week in Mr. Blake’s care in Calgary. However, my understanding is that in September and November, Mr. Blake was in Brandon and, as such, H had frequent contact with Ms. Donald at various points of time during those weeks. Again, Ms.

Ailon’s “conclusion” in this regard is only based on information provided by Mr. Blake. [ 23 ] Mr. Blake indicated on a number of occasions during the course of this proceeding that he understood that access arrangements would necessarily need to be adjusted once H commences school in September 2022. Notwithstanding these assurances, his proposed access plan contemplates the continuation of access one week per month in Calgary even after H commences full time attendance at school.

[24] The issue of access once H starts school on a full-time basis is not before me. Rather, I am concerned with access during theextraordinary challenges presented by the continuing Covid-19 pandemic, and possibly up until September 2022, when H is scheduled toenter kindergarten. Mr. Blake’s access once H starts school will, of course, have to be addressed at a later date. My hope is that theparties, armed with the positive experiences drawn from the implementation of the current access plan, will be able to address this issueon their own and without the intervention of lawyers and the court. [25] I note Ms.

Ailon’s suggestion that a one week per month access plan “can continue through the child’s formal schooling...”Respectfully, I find this conclusion to be premature. I am also concerned that it is unhelpful in all of the circumstances in that it runs therisk of creating false hope in Mr. Blake that H starting school will have no impact on access on a go-forward basis. In my view, this issuewill require careful future consideration based on the precise circumstances then found to exist. I attach little if any weight to this aspectof Ms.

Ailon’s opinion without further detailed elaboration and in the absence of both cross-examination and access to whateveradditional information might be forthcoming from Ms. Donald and others. The Access Plans [26] Mr. Blake’s request to have a week of access per month in Calgary is not, in my view, reasonable or viable at the present timeunder all of the circumstances. His proposed access plan seeks considerably more access, and particularly more Calgary access, than setout in the Kirker J order.

It will result in a degree of disruption to the life of this child that I find to be excessive and, as such,unsustainable. As long as Covid-19 travel restrictions remain in effect, there is considerable uncertainty regarding the availability of airservice between Brandon and Calgary, either direct flights or via Winnipeg. There are also concerns about the child’s ability to wear amask for the duration of these trips, bearing in mind that he would have to wear a mask from the moment he arrives at the airport inadvance of the flight until the flight lands at its destination and the second airport had been cleared.

In such circumstances, it seemslikely that making the journey via car will be the most likely method of transportation, assuming inter-provincial travel continues to bepermitted in the face of escalating concerns relative to Covid-19 transmission. This means that this young child would be required tospend at least 17 hours in a vehicle driving between Brandon and Calgary, and a similar return journey from Calgary to Brandon, everymonth. [27] I am, of course, very sympathetic to the impact of H’s move to Brandon on Mr. Blake’s regular contact with his son.

Iacknowledge with some considerable regret the all too common adverse impact on the parent-child relationship that occurs in thesechange of residence cases. Child mobility cases are generally regarded as amongst the most difficult cases confronting judges. In myview, this is due, at least in part, to the fact that they almost invariably result in the weakening of the bond between a child and his or herparent left behind.

While courts actively strive to minimize as best they can the dilution of the parent-child relationship in suchcircumstances, there are limits on what is and is not possible in such situations. [28] Maximizing contact between a child and both parents is one of the guiding principles set out in the Divorce Act. However, thismust give way to the best interests of the child when these two principles collide.

In Gordon v Goertz, (SCC), [1996] 2SCR 27, McLachlin J (as she then was) described the “maximum contact” principle in the following terms at para 24: The “maximum contact” principle, as it has been called is mandatory, but not absolute.

The Act only obliges the judge to respect it to theextent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests,the court can and should restrict contact: Young v Young, (SCC), [1993] 4 SCR 3, at pp. 117-18. [29] One of the great challenges of mobility applications is that important family law principles can draw the court in differentdirections. While the “maximum contact” principle would suggest that maximizing Mr.

Blake’s parenting time should be accorded greatsignificance, the “best interests” principle may well require that maximum contact take a back seat to the overall well-being of the child.As McLachlin J underscored in Gordon, “best interest” must prevail in these kinds of cases. I would also note that McLachlin J observedin Gordon, that mobility cases are not based on what is in the best interests of the parents, but rather what is in the best interests of thechild.

This observation is, I suggest, equally applicable in dealing with issues relating to access. [30] While there is no perfect solution in this case, I find that H’s best interests will be best achieved through an access plan thatbalances the child’s need for stability in his primary home in Brandon, with the need for him to continue to develop a close and lovingrelationship with his father through regular contact. As such, the access plan needs to ensure that H maintains his

schedule in Brandon,and allows him to pursue his normal activities and social life in that environment. To the extent possible, Mr. Blake should be given theopportunity to be integrated into H’s life in Brandon, given that this will be his primary residence. At the same time, H needs to regularlybe exposed to Mr. Blake’s life in Calgary, so that H comes to also see this as one of his homes. One of my concerns relating to Mr.Blake’s plan is that virtually all of his access would take place in Calgary. While asking Mr.

Blake to spend time in Brandon as part of anoverall access plan will doubtless create some personal inconvenience, I am of the view that it will help H to avoid living a life dividedinto two water-tight compartments. This is admittedly, a difficult and fine balance to create and maintain, but strives to promote Mr.Blake’s prominent place in his son’s life. [31] Mr. Blake should have access to H for total of 8 weeks per year commencing in 2021. These access weeks shall be as follows: (

a) Mr. Blake shall have access to H in Calgary, or any other location in Canada of Mr. Blake’s choice, for four blocks of timeper year: (

i) Two weeks in July 2021; (ii) Two weeks in August 2021, non-consecutive to the access weeks in July and with a minimum of two weeks between the twoaccess periods; (iii) One week that corresponds with the Calgary Symphony Orchestra’s spring break; (iv) One week at Christmas in odd numbered years and one week at New Year’s in even-numbered years.

(

b) For the year 2022 and thereafter, Mr. Blake shall have summer access to H in Calgary, or any other location in Canada of Mr. Blake’s choice, for a total of four weeks in such block or blocks of time as may be agreed upon by the parties; (

c) Mr. Blake shall have access to H in Brandon for a period of up to one week, two times per year: (

i) One week in May; (ii) One week in October. (

d) Mr. Blake may change one or both of these Brandon weeks for Calgary access weeks as long as a minimum of two weeks of access per year are spent in Brandon; (

e) Mr. Blake shall have access to H in Brandon for up to three days and nights in any month during which he does not otherwise have access; (

f) Mr. Blake shall be entitled to such other reasonable and generous access as may be agreed upon by the parties. [ 32 ] As set out in the order of September 15, 2020, and subsequently varied by consent on January 19, 2021, Mr. Blake shall have Skype/Facetime with H facilitated by Ms. Donald, three times a week:

a) Monday evening at 6:00 p.m. (Winnipeg time) (with Mr. Blake’s parents, if possible);

b) Thursday morning at 8:30 a.m. (Winnipeg time);

c) Saturday morning at 8:30 a.m. (Winnipeg time). Ms. Donald’s Application to Transfer this Matter to Manitoba [ 33 ] With the agreement of the parties, Ms. Donald’s application to transfer this matter to the Province of Manitoba is adjourned sine die . In the event that either party seeks to vary the terms of this order regarding access, leave is granted to Ms. Donald to pursue this application. I would further direct that Ms.

Donald’s application to transfer this matter to Manitoba, absent an agreement between the parties to the contrary, shall be heard in advance of any further application regarding parenting or access. Conclusion [ 34 ] The application to vary the terms of the order of Kirker J dated July 5, 2018, regarding Mr. Blake’s access to H is granted. The order is varied as set out in paragraphs 31-32, above.

The application to transfer this matter to the Province of Manitoba is adjourned sine die . [ 35 ] Before closing, I would urge both parents to take proactive steps to try and address their individual challenges flowing from the breakup of their marriage and the personal impact of the on-going high conflict related to their shared parenting responsibilities. I would observe that Mr. Blake appears to be highly traumatized from the loss of frequent contact with his son resulting from H’s relocation to Manitoba with his mother some 2 ½ years ago. I would also observe that Ms.

Donald appears to be highly traumatized from the ongoing conflict with Mr. Blake relating to his ongoing access to H and, more significantly, his fervent desire to continue to play a very active role in H’s life. The impact of this conflict on both parties was palpable throughout my extensive interactions with them over the course of the past number of months. It is clear to me that both parties have the potential to be extraordinary parents to their son.

Unfortunately, the state of high conflict that permeates all of their interactions continues to have a highly negative impact on their parenting aspirations and the attainment of their full potential as parents. [ 36 ] While H remains a young child, turning 4 years in April, 2021, I am gravely concerned that his knowledge and awareness of the high conflict between his parents is having, and will continue to have, a significant negative impact on his sense of security, self- worth, as well as his growth and development as a high functioning individual.

I urge both parents to take all reasonable steps to protect H from this conflict. Costs [ 37 ] There will be no order relating to costs given the mixed success flowing to each party in this instance. Heard on the 17 th day of September, 2020, and continued on the 25 th day of November, 2020, and the 19 th day of January, 2021.

Dated at the City of Calgary, Alberta this 8 th day of February, 2021. M. David Gates J.C.Q.B.A. Appearances: T. Bannister (September 17, 2020 appearance only) for the Applicant Peter W.J. Blake (November 25, 2020 and January19, 2021 appearance) Self-Represented Litigant A. Weis for the Respondent