Morley v Doy, 2021 ABQB 979

Court of Queen’s Bench of Alberta Citation: Morley v Doy, 2021 ABQB 979 Date: 20211208 Docket: FL03 61234 Registry: Edmonton Between: Larah Katherine Morley Plaintiff - and - Daniel Ryan Doy Defendant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice L.M. Angotti _______________________________________________________ [ 1 ] Ms. Morley applies to terminate Mr.

Doy’s guardianship of their son, born in fall 2012, on the grounds that he has failed to consistently be involved in the child’s life since their separation in 2017, his substance abuse issues, and his abusive treatment of the mother. The driving force behind her application is her stated goal to prevent Mr. Doy from bringing any further applications for parenting time. [ 2 ] Mr. Doy has also applied for interim parenting of his son.

The parties attended in Family Docket, where the parenting application was directed to regular Chambers and the termination of guardianship application was directed to Special Chambers. On May 18, 2021, the parenting application was heard by Lema J and dismissed. Justice Lema concluded that there had not been a material

change in circumstances since the order of Judge Filice and denied the parenting application. The father sought to have this parenting decision revisited at the Special Chambers hearing; his request is denied. [ 3 ] The mother’s termination of guardianship application is denied. [ 4 ] The parties have a significant litigation history regarding parenting before the Provincial Court of Alberta, with six Court Orders granted between December 2017 and July 2020. In addition, the mother obtained a Restraining Order at the Court of Queen’s Bench, which remained in place until January 2021.

In brief, the mother was always granted day to day parenting with sole decision making, with the father entitled to receive information. The father was granted various types of parenting arrangements, with parenting time decreasing from Order to Order. The first Order provided for unsupervised parenting for a few hours three days a week. Subsequent Orders provided for supervised parenting a few days a week with a drug screening provision, and then supervised parenting a couple of hours a week with a drug screening provision.

Then the mother failed to appear for one application and the father received unsupervised parenting one day per week, but this order was vacated in part on an ex parte application by the mother and then wholly vacated in July 2020, when all parenting time was removed from the father. [ 5 ] The parties did not make any submissions on the impact of a termination of guardianship nor explore any possible distinction between guardianship and parenting (formerly referred to as custody). It has been the subject of some debate in a few reported decisions.

In Blois v Salacki , 2016 ABQB 323 and KBG v KFA , 2018 ABQB 901 , the Court pondered whether such termination could impact upon the payment of child support. The Provincial Court, in MRC v EL , 2017 ABPC 156 and AMF v AMJP , 2021 ABPC 212 , questioned such an impact, as the Family Law Act , S.A. 2003, c. F-4.5 ( FLA ) provides for child support obligations by a parent, not a guardian. While guardianship normally attracts all the rights and responsibilities related to parenting, a court has the power to limit a parent’s guardianship rights under the FLA .

At the same time, a parent who is not a guardian may still apply for a contact order with respect to the child, without requiring leave of the Court: s. 35 , FLA . The Court of Appeal outlined in VL v DL , 2001 ABCA 241 , some of the legal rights and obligations of a guardian under various pieces of legislation. While the termination of guardianship does not impact upon child support or parental contact with the child, it does impact upon a variety of decision-making obligations and entitlement to information that guardians have.

In addition, guardians are impacted by applications for adoptions or guardianship by the Director under the FLA and impacted in the exercise of various legal rights or obligations under other legislation. [ 6 ] Under s 25 of the FLA , the Court may terminate guardianship if, “…for reasons that appear to it to be sufficient, the court considers it necessary or desirable to do so.” In determining an application on termination of guardianship, the Court is required to consider the best interests of the child.

It has been expressed that termination of guardianship is appropriate only in extreme circumstances, such as minimal contact with the child over extended periods of time or where a guardian is unable or unwilling to address parenting deficiencies: MRC, supra at para. 272; AMF , supra at para 118 .

Such a threshold would be consistent with the decision in DAF v SRG , 2020 ABCA 25 at para 18 , where the Court stated that “…[t]erminating a child’s right to visit with and know his father is an extreme remedy which should only be ordered in the most exceptional of circumstances.” In addition to the child’s best interests, public interest consideration of the effects of terminating guardianship may also be considered: Blois , supra; KGB, supra . [ 7 ] The mother relies upon a lack of contact and a failure to address parenting deficiencies as grounds for her application, citing the above Alberta Provincial Court decisions.

In both of those cases, the Court terminated guardianship where the father failed to be engaged with the child over extended periods of time without appropriate explanation, acted inappropriately to and about the mother, and failed to recognize either poor parenting skills or the need for conditions on their parenting. In addition, in MRC, supra , the father had significant anger management issues that presented themselves in the courtroom setting, despite previously taking anger management courses, and failed to recognize issues with drug use, including its impact upon parenting.

In AMF , supra , the father’s lack of contact was extreme, at one point over several years, and the Court gave great weight to the child’s view, which supported termination. [ 8 ] The evidence before this Court is significantly different. [ 9 ] Mr. Doy has engaged in inappropriate behaviour towards the mother sufficient to warrant a restraining order, although the extent of the behaviour is a matter of controversy between the parties. But he has not engaged in that behaviour towards the child, who is the focus of this application.

The father has admitted substance abuse, which has impacted upon his ability to appropriately engage in the opportunities provided by either the mother or the various Court Orders to parent and establish a relationship with his child. Prior to March 2019, the father exercised parenting time on occasion, although not to the level permitted by the Court Orders. He has not had parenting time since March 2019, with the exception of one day in December 2020 where the mother agreed to and supervised a visit despite the restraining order.

Since December 2019, the father has been subject to a restraining order with respect to the mother and Court Orders that suspended and then removed his parenting time. These explain the lack of parenting time or contact over the last couple of years. [ 10 ] I decline to find a negative inference against the father for refusing a drug test requested by the mother’s counsel in April 2021, when there had not been a Court Order in place since June 2020 requiring any type of drug screening. I also do not accept the mother’s allegations that he is currently active in the drug trade.

Without a doubt, the father has not been a model parent and has on many occasions acted with poor judgment. It is likely this has had a negative effect on the child. But it is not the level of egregious behaviour at play in the Provincial Court decisions, especially given his illness of substance abuse which he recognizes and is taking steps to address. [ 11 ] In considering the various factors for the best interests of the child, the best interests of the child are not furthered by a termination of guardianship.

They are already addressed by the current parenting order, which places the child in the mother’s primary care and provides her with sole decision-making authority. It must be remembered that the denial of this application does not result in a change to the current parenting arrangement. [ 12 ] One of the factors relevant to the best interests of the child is the benefit of the child developing and maintaining a meaningful relationship with the father. While that has not occurred to date, such a benefit would be much more difficult to realize if the father’s guardianship was terminated.

The father’s substance abuse, which is an illness, has been a significant factor throughout the last nine years for consideration by both the mother and the Courts in addressing parenting. That is as it should be. However, the father has openly recognized his substance abuse and deposed to steps taken to address such abuse in a positive manner. The child is only 9 years old, and

time can result in change, including a material change in circumstances. Hopefully the father continues to succeed with his treatment of substance abuse and his efforts to become a better person, so that he can become a positive influence in the child’s life. While he does not currently have parenting time, a guardian has the right to apply for a variation in parenting if there is a material change in circumstances. It is not appropriate to terminate guardianship, a substantive and significant remedy against a parent, simply because the mother is exhausted by the litigation process.

There are other procedural means to deal with concerns around repeated litigation. This is not one of those extreme and rare circumstances that warrant such a significant remedy. [ 13 ] Further, I adopt the reasons of Veit J in Blois , supra to not terminate the guardianship, as there may be future events that should involve the father, such as unanticipated and unknown events that may result in the termination of the mother’s guardianship.

It is not necessary and desirable in these circumstances to grant the application. [ 14 ] The mother’s submission that the father’s evidence of his positive actions is vague has some merit.

While the father deposed to his employment, involvement in the community church, and participation in Alcoholics Anonymous (AA), he did not provide any documentary evidence such as a pay slip or confirmation of his involvement with AA, nor did he provide any timeframe for his involvement with AA or the current length of his sobriety. [ 15 ] Given the repeated litigation of the parties and the decision of Lema J with regard to parenting on May 18, 2021, the father is not permitted to bring an application to vary parenting until September 2022, except in the event of an emergency.

At that time, the father should provide evidence of his sobriety, treatment for his substance abuse issues, his employment history, and other matters relevant to show that he continues to lead a positive lifestyle. In addition, the father would do well to comply with his disclosure and payment obligations, as it relates to child support, as an indication that he prioritizes the best interests of his child.

On any future application, the father will be required to meet any applicable legal test for a variation of the current Parenting Order. [ 16 ] If the parties are unable to agree upon costs, they may provide brief written submissions to me within 45 days of this decision. Heard on the 19 th day of October, 2021. Dated at the City of Edmonton, Alberta this 8 th day of December, 2021. L.M. Angotti J.C.Q.B.A. Appearances: Sam W Rollans of Bruyer MacKay for the Plaintiff Larah Morley Theresa Hamel of Peak Family Law for the Defendant Daniel Doy