Fitzpatrick v Fitzpatrick, 2023 ABKB 703

Court of King’s Bench of Alberta Citation: Fitzpatrick v Fitzpatrick, 2023 ABKB 703 Date: 20231208 Docket: 4801 185855 Registry: Calgary Between: Petra Fitzpatrick Applicant/Cross-Respondent - and - John Liam Fitzpatrick Respondent/Cross-Applicant _______________________________________________________ Reasons for Decision of the Honourable Justice M.H. Bourque _______________________________________________________ [ 1 ] Mr. and Mrs. Fitzpatrick began cohabitating on September 1, 2005, and married on June 2, 2007.

They separated on February 17, 2020, though they continued to live at the matrimonial home with the children of the marriage, until July 2020, when Mr. Fitzpatrick moved to a rental accommodation. There are two children of the marriage, A and T, aged 14 and 11, respectively. Further history about these parties and the turmoil that has followed the breakdown of their relationship is described in, inter alia , Fitzpatrick v. Fitzpatrick , 2022 ABKB 862 ( Fitzpatrick #1 ) and Fitzpatrick v. Fitzpatrick , 2023 ABKB 281 ( Fitzpatrick #2 ). Unfortunately, the children have not been shielded from this litigation.

Nor have the parents followed the recommendations made by the court-appointed parenting expert more than 2 years ago.

[ 2 ] In this half-day special, Mrs. Fitzpatrick applies for retroactive child and spousal support based on Mr. Fitzpatrick’s income and for increased on-going child and spousal support. In his response to her application, Mr. Fitzpatrick seeks to impute income to Mrs. Fitzpatrick on the basis that she is underemployed. Mr. Fitzpatrick cross-applies for an order confirming that he is to be consulted, and that Mrs. Fitzpatrick is required to seek his consent, regarding guardianship and parenting decisions. He also seeks regular and/or quarterly updates from Mrs.

Fitzpatrick regarding the children’s health and well-being. [ 3 ] This is a high conflict situation and these parties need to go to a trial to resolve all remaining issues. Child Support

Section 3 Base Support [ 4 ] Mr. Fitzpatrick does not dispute that he is required to pay support under sections 3 and 7 of the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ], though he submits that his obligations should be calculated based upon his base income with reasonable adjustments to

section 3 support yearly, upon receipt of a bonus from his employer. Pursuant to an interim order made November 24, 2020 (the “Mahoney Order”), Mr. Fitzpatrick has been paying $2,159 per month in child support plus $500 per month towards

section 7 expenses. The Mahoney Order was based on a Guidelines income of $152,000 for Mr. Fitzpatrick. [ 5 ] For the 2020, 2021 and 2022 taxation years, Mr. Fitzpatrick’s line 150 income was $199,164, $298,322 and $304,091 respectively. Except for 2020, Mrs. Fitzpatrick submits that Mr. Fitzpatrick’s line 150 income should be used to determine the amount of his

section 3 child support obligation. [ 6 ] For 2020, Mrs. Fitzpatrick says Mr. Fitzpatrick’s Guidelines income should be slightly lower at $196,539, by excluding certain rental income relating to a condo where her parents live. Even though these parties had included rental income from this condo on their tax returns for several years prior to the breakdown of the relationship, Mrs. Fitzpatrick continues to take the position in this application that the condo is not a rental property.

Justice Harris ordered the sale of the condo on August 18, 2022 ( Fitzpatrick #1 , at para 10 ) and the condo has been the subject of separate protracted litigation (see: Doerfler v. Fitzpatrick , 2023 ABKB 651 , and other unreported decisions). For the purposes of this application, I need not determine the nature of the parties’ interest in the condo. Instead, I will simply exclude the amount of the 2020 rental income from Mr. Fitzpatrick’s income. [ 7 ] Mr.

Fitzpatrick argues that his line 150 income is difficult to predict because he may receive variable incentive pay depending on, inter alia , his individual performance and the performance of his employer, on a yearly basis. The evidence demonstrates that a not insignificant portion of his employment income is comprised of variable incentive pay. Moreover, after separation, Mr. Fitzpatrick commenced earning additional revenue from a new source of self-employment income, which totaled $45,025 and $20,975 in 2021 and 2022 respectively.

His self-employment income varies depending on the contracts he can secure and their rate of pay. He seeks an order that his income be set at his base employment of $170,000 per year, with reasonable adjustments to

section 3 support yearly, upon receipt of a bonus from his employer, which he says is paid in December annually. [ 8 ]

Section 17 of the Guidelines provides that where the Court is of the opinion that using a spouse’s line 150 income would not yield the fairest determination of child support, the Court may have regard to a spouse’s income over the last three years to determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years. [ 9 ] In my view, subject to the application of

section 4 of the Guidelines , Mr. Fitzpatrick’s income is indeed sufficiently variable from year to year that it would be appropriate for the Court to apply

section 17 of the Guidelines and set Mr. Fitzpatrick’s income for child support purposes for any particular year as the average of his line 150 income for the preceding three taxation years. Because his actual line 150 income is known for the 2020 to 2022 taxation years, there is no need to use an average for those years. However, for 2023 and subsequent years, Mr. Fitzpatrick’s monthly child support obligation should be determined by using the average of his line 150 income for the preceding three taxation years. [ 10 ] Given that Mr.

Fitzpatrick earns business income from an unincorporated business and his tax return is therefore only due to be filed by June 15 every calendar year, his line 150 income should be known, at the latest, by June 30, 2023. I order that the parties adjust Mr. Fitzpatrick’s monthly child support obligation with the July 1 payment each year. [ 11 ] For 2023, I set Mr. Fitzpatrick’s guideline income at $266,317.33, being the average of his line 150 income for 2020, 2021, and 2022. The same methodology shall be used in subsequent years.

As a result, for 2023, his monthly child support obligation in accordance with the table is $3,668.38. [ 12 ] Subject to audit of my calculations by the parties, I have determined that Mr. Fitzpatrick’s

section 3 yearly obligations, including arrears, to the end of 2023 to be as follows: Year Line 150 or Guideline

Section 3 Table Amount Amount Paid Monthly Deficit Number of Months Arrears 2020 $196,539 $2,747.31 $2,159.00 $588.31 6 $3,529.86 2021 $298,322 $4,090.85 $2,159.00 $1,931.85 12 $23,182.20 2022 $304,091 $4,167.00 $2,159.00 $2,008.00 12 $24,096.00 2023 $266,317 $3,668.38 $2,159.00 $1,509.38 12 $18,112.56 $68,920.62 [ 13 ] For on-going

section 3 child support, Mr. Fitzpatrick shall continue paying the 2023

section 3 table amount of $3,668.38 for the first 6 months of 2024. Then, commencing with the July 1, 2024 payment, his monthly

section 3 child support obligation would be

determined in accordance with the table, using the average of his 2021, 2022 and 2023 line 150 incomes. That amount would then bepaid for the July 2024 to June 2025 monthly obligations. That adjustment process would then be repeated in subsequent years. [14] Before moving on to consider the application of

section 4, I have noted that the parties have a dispute regarding the totalamount paid by Mr. Fitzpatrick in 2020. Mr. Fitzpatrick says the amount is $19,459, while Ms. Fitzpatrick says it is $7,264. I do nothave sufficient information to resolve that dispute at this interim stage. Subject to out-of-court resolution, that issue should bedetermined at trial.

Section 4 Deviation [15] In cases involving a payor with an annual income exceeding $150,000,

section 4 of the Guidelines allows a court to deviatefrom the monthly child support obligation determined in accordance with the table if the court considers that amount to be inappropriate. Writing for the majority in Francis v. Baker, (SCC), [1999] 3 SCR 250, Bastarache J. held that the purpose of theGuidelines is (at para 39) “to establish fair levels of support for children from both parents upon marriage breakdown, in a predictableand consistent manner” such “that a divorce will affect the children as little as possible”.

At para 40, he held: A proper construction of s. 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced withthose of fairness, flexibility and recognition of the actual “condition, means, needs and other circumstances of the children” on the other. Furthermore, this balancing must take into account the ordinary meaning of the word “inappropriate”, as well as its use elsewhere in thestatute. In my opinion, the plain language of s. 4 is consistent with such an

interpretation. Accordingly, the word “inappropriate” in thissection must be broadly defined to mean “unsuitable” rather than merely “inadequate”. Courts thus have the discretion to both increaseand reduce the amount of child support prescribed by the strict application of the Guidelines in cases where the paying parent has anannual income exceeding $150,000... [16]

Section 4 concerns itself with the amount of the child support obligation that results from a payor’s income exceeding$150,000. Subject to the undue hardship provisions, and to some lesser extent

section 7, deviation from the table amount is not permittedfor the first $150,000 of the payor’s income. With respect to the excess portion, the Court can reduce or increase the table amount if theCourt is of the opinion that the amount is inappropriate, having regard to the conditions, means, needs and other circumstances of thechildren, and the financial abilities of the spouses.

That said, based on the ordinary meaning of the provision, its context in the overallscheme and the purpose of the Guidelines, there is a presumption in favour of the table amounts (Francis, at para 42). [17] The party seeking deviation is not required to testify or call evidence in support of their position. Instead, that party maychoose to question the evidence of the opposing party in support of the requested deviation.

In all cases, “the evidence in its entiretymust be sufficient to raise a concern that the applicable Table amount is inappropriate” and this requires clear and compelling evidencefor departure (Francis, at para 43). It is only after examination of all the circumstances of the case, including the factors listed in s. 4(b)(ii), that a court should find whether the table amounts are inappropriate and craft a different child support award (Francis, at para 44). [18] In terms of evidence, Bastarache J. was clear that the task under

section 4 can only be undertaken by courts “armed with all ofthe necessary information”, including such things as child expense budgets where the Court would find those to be useful (Francis, atpara 45). He also points to the existence of subsection 21(4) of the Guidelines, which imposes on recipients an obligation to provide thedocuments listed in 21(1) in cases involving a child support payor’s income exceeding $150,000. [19] At this interim stage, I am not satisfied that the evidence raises any concern that the table child support amount isinappropriate.

As I will discuss later in these reasons, the revised on-going child and spousal support amounts ordered (including the$500 paid on account of

section 7 expenses) result in Mr. and Mrs. Fitzpatrick sharing combined monthly available cashflowproportionately at 45% and 55% respectively. This is well within an acceptable range and tends to disprove the proposition that the tablechild support amount is inappropriate. Therefore, I would not make any adjustment to Mr. Fitzpatrick’s monthly child support obligationpursuant to

section 4 of the Guidelines. Conclusion [20] For the reasons set out above, Mr. Fitzpatrick has underpaid

section 3 child support since 2020. I have estimated the amountof his child support arrears to December 31, 2023 at $68,920. It is an estimate because the parties do not agree on the amounts Mr.Fitzpatrick paid in 2020 and that issue cannot be resolved on this record. As Mr. Fitzpatrick has consistently paid the amounts under theMahoney Order in 2021, 2022, and 2023, the arrears in those years as set out in the table above should be correct. [21] On an on-going basis, Mr. Fitzpatrick will pay monthly

section 3 child support in the amount of $3,668 up to and includingthe June 2024 child support amount. Starting July 1, 2024, Mr. Fitzpatrick’s

section 3 monthly child support obligation will berecalculated using the average of his line 150 income for 2021, 2022 and 2023. The monthly child support amount will be recalculatedin each subsequent year following the same methodology. [22] Mr. Fitzpatrick did not request any change to the Mahoney Order that requires him to pay $500 per month on account ofsection 7 expenses for the children of the marriage. Below, in considering Mrs. Fitzpatrick’s application for increased spousal support, Ihave ordered that Mrs. Fitzpatrick be imputed an income of $60,000 per year. The same rationale shall be applied for purposes ofdetermining the parties’ proportionate share of

section 7 expenses on a go-forward basis. Spousal Support [23] Mrs. Fitzpatrick seeks a change to interim spousal support under the Mahoney Order pursuant to which Mr. Fitzpatrick hasbeen paying $1,000 in monthly spousal support. That amount of monthly spousal support was calculated using an income that was

approximately 25% lower than what Mr. Fitzpatrick earned in 2020 and nearly 50% lower than what he has been earning since that time. Although Mr. Fitzpatrick concedes Mrs. Fitzpatrick’s entitlement to spousal support on compensatory and non-compensatory bases, he argues that Mrs. Fitzpatrick is intentionally underemployed and that an income should be imputed to her. He is agreeable to continuing to pay $1,000 per month. Mrs.

Fitzpatrick seeks spousal support at the high range of the Spousal Support Advisory Guidelines, on the basis that she has primary care of the children, that she has a limited ability to work and certainly not full time because she has primary care of the children (whom I note again are aged 11 and 14), that the parties do not have significant property, and that Mr. Fitzpatrick has an enhanced ability to pay, having no other legal obligation to support other people. Should an Income be Imputed to Mrs. Fitzpatrick [ 24 ] In Peters v.

Atchooey , 2022 ABCA 347 , the Alberta Court of Appeal set out the analytical framework for determining whether an income should be imputed pursuant to subsection 19(1) (

a) of the Guidelines . Since that time, members of this Court have determined that the same analytical framework should be applied in determining whether an income should be imputed for purposes of determining spousal support: Nykolyshyn v. Dalton , 2022 ABKB 860 at para 38 , aff’d 2023 ABCA 297 ; JS v. JD , 2023 ABKB 155 (at paras 65-66 , 69).

It is noted that although the Court of Appeal upheld Nykolyshyn , the issue of whether the analytical framework applies equally to spousal support was not argued. [ 25 ] Briefly stated, Peters sets aside the deliberate or intentional evasion test under previous binding Alberta jurisprudence in favour of a reasonableness test in assessing whether to impute income. The reasonableness assessment is guided by the principles listed in Peters at para 92 : The following is a non-exhaustive list of principles [footnote omitted] to guide the determination of whether to impute income under s 19(1)(a): 1.

General Duty to Work . There is a duty to seek employment where a parent is healthy and can work. A parent’s limited work experience or job skills do not justify a failure to pursue lower skilled employment or employment in which the necessary skills can be learned on the job. While this may mean a job at the lower end of the wage scale, parents cannot refuse to take reasonable steps to support their children simply because they cannot obtain interesting or highly paid employment.

Nor can a high-earning or highly skilled parent refuse employment indefinitely by holding out for employment commensurate with their skills and previous level of earning, job title or seniority. 2. Earning Capacity Used to Assess Reasonableness . When determining whether to impute income on the basis of under-employment or unemployment, a court must consider what is reasonable in the circumstances. The starting point is the payor’s earning capacity, which is the objective measure by which the reasonableness of the parent’s decision or conduct is assessed.

Earning capacity is determined based on factors like age, education, experience, skills, and health of the payor, along with availability of work, the freedom to relocate, and other obligations. 3. Discretion . Income will not be imputed where a parent’s decision to earn less than the maximum they are capable of making is found to be reasonable. Nor is there a presumption that a career choice resulting in a reduction in income is unreasonable. 4. Obligation to Support Children is the Overarching Goal . The reasons for under-employment or unemployment must be objectively scrutinized.

A parent is required to act in a manner reflective of his or her obligations and cannot be excused from support obligations in furtherance of unrealistic, unproductive or non-remunerative career aspirations. Persistence in unremunerative employment or repeated education initiatives may also entitle the court to impute income. Parental self-fulfillment is a consideration but does not trump child support requirements. 5. Agreements Contextualize Reasonableness. The parties’ pre-separation agreements or social contracts have some weight in determining Guidelines income, but they are not determinative.

The parenting arrangement, and the payor’s involvement or lack of involvement with the children, the length or time the arrangement has been in place, and the ages of the children may be considered in assessing the reasonableness of the payor’s under-employment or unemployment. 6. Reasonableness Is Not Fixed in Time . The payor’s history of paying child support and providing financial disclosure are objective measures by which to assess the reasonableness of the payor’s employment decision or conduct.

What is reasonable (or unreasonable) is determined at one point in time and will not necessarily remain static for the entire time the children are owed support. 7. The Ultimate Onus Rests on the Party Opposing Imputation . Assuming the financial disclosure requirements have been met, the onus is on the party opposing imputation to prove on a balance of probabilities: 1) that the under-employment or unemployment was not voluntary, that is, not due to their own decision or conduct; or, 2) that the under-employment or unemployment is as a result of one of the listed exceptions in s 19(1)(a).

If neither circumstance applies, that party must establish on a balance of probabilities that their under- employment or unemployment is reasonable, having regard to all the existing circumstances. However, where it is an initial application, the person seeking an imputation of income under s 19(1)(

a) has a preliminary onus to establish some basis for the imputation sought. Either way, each stage of the analysis requires evidence that is as objective as possible. Bare assertions will not suffice. [ 26 ] In this case, I am satisfied that an income should be imputed to Mrs. Fitzpatrick for the following reasons. [ 27 ] First, there is no evidence before me that Mrs. Fitzpatrick is unemployed or underemployed because of circumstances beyond her control.

While some transition period of unemployment or underemployment may be found to be appropriate immediately following the breakdown of a relationship, unexplained and persistent underemployment or unemployment is not. Mrs. Fitzpatrick argues that as the primary parent (she describes herself as the de facto sole parent) with primary care of the children, she is unable to work full time. The children are 14 and 11 years old. There is no indication that they require any special care that would prevent Mrs. Fitzpatrick from working a full-time job. Every day, single parents wake up and work full-time jobs.

There is nothing about this case that meaningfully differentiates Mrs. Fitzpatrick from other parents in similar circumstances.

[ 28 ] Second, and despite her counsel’s submissions to the contrary, Mrs. Fitzpatrick has all the required skills to work in something other than a minimum wage job. She has previously worked as a tutor and has a Certificate in Early Childhood Care. She maintained those skills by teaching preschoolers German from 2014 to 2020. Mr. Fitzpatrick says that Mrs. Fitzpatrick resigned from that position in 2020, but not due to COVID and it is Mr. Fitzpatrick’s evidence that she was earning $46.06 per hour at that time. Mrs.

Fitzpatrick has not presented any contradictory evidence and has not explained why she chose to resign from that employment. [ 29 ] Lastly, Mrs. Fitzpatrick deposes that she is 46 years old and that it would take her 6 years to retrain as a teacher, and she has “concerns about [her] age and [feels] like there could be some bias against hiring [her] at her age.” It may be that it will take some time for Mrs. Fitzpatrick to retrain, if that is even necessary or required.

However, it is not difficult to take judicial notice of the fact that labour shortages abound, including for teachers and teaching aides or assistants. I am satisfied that Mrs. Fitzpatrick possesses all the skills and aptitudes to obtain employment in that field. Moreover, her concerns about bias are self-serving and wholly unsubstantiated by any evidence. Though the parties have been separated for three years, Mrs. Fitzpatrick seems to have expended little to no effort in improving her own post-separation economic self-sufficiency. [ 30 ] In this interim application, Mr.

Fitzpatrick seeks to impute an income of $60,000. In my view, this is more than adequate. The evidence before the Court is that Mrs. Fitzpatrick was earning $46 per hour when she resigned from her position in 2020. Assuming a 35-hour work week, she could earn an annual salary well above $80,000. I am satisfied that the requested imputation of income in the amount of $60,000 is reasonable in the circumstances. Disclosure [ 31 ] In questioning Mrs. Fitzpatrick on her affidavit, Mr. Fitzpatrick obtained an undertaking for several items of financial disclosure, including bank statements.

In her disclosure affidavit affirmed on July 12, 2023, she attached

Schedule 3, which included “copies of all statements and cancelled cheques for all bank accounts held solely or jointly in [her] name for ... Aug 1, 2022 to June 1, 2023”. Mrs. Fitzpatrick also obtained a similar undertaking, and Mr. Fitzpatrick, likewise provided his disclosure statement, copies of bank statements for several bank accounts for the same period. [ 32 ] Mr. Fitzpatrick’s counsel pointed out at the hearing of this application that on or near the first bank day of each and every month, an amount of $3,659 is withdrawn from Mr.

Fitzpatrick’s account by the Alberta Maintenance and Enforcement Program (“MEP”). Curiously, none of Mrs. Fitzpatrick’s disclosed bank account statements show similar deposits into her account.

However, starting in August 2022, her bank account ending in 036 shows “E-Transfer from Petra Fitzpatrick” in the amount of $3,000, and similar E-Transfers from Petra Fitzpatrick of the same amount were deposited into that bank account on September 8, 2023, October 11, 2022, November 7, 2022, December 12, 2022, December 28, 2022, January 9, 2023, February 7, 2023, March 7, 2023, April 10, 2023, May 8, 2023, and June 7, 2023.

Other “E-Transfers from Petra Fitzpatrick” into that bank account also include the following: $2,100 on January 19, 2023, $1,000 on February 13, 2023, $500 on March 21, 2023, and $500 on May 24, 2023. Nowhere in Mrs. Fitzpatrick’s disclosure statement did I find bank statements of Petra Fitzpatrick showing the origin of these E-Transfers. [ 33 ] Despite her sworn statement to the contrary, it is clear to me that Mrs. Fitzpatrick’s disclosure is incomplete. It is evident that she has other bank accounts into which, inter alia , the combined monthly support amounts of $3,659 are deposited monthly.

MEP does not remit maintenance payments in cash. These other bank accounts are presumably the source of the interac transfers from Petra Fitzpatrick listed above. They may also draw a more accurate picture of Mrs. Fitzpatrick’s financial affairs. The consequences of Mrs. Fitzpatrick’s failure to disclose will be addressed below. Post-Separation Increase in Income [ 34 ] Mr. Fitzpatrick’s income increased substantially post-separation. A large portion of this increase in income comes from the fact that Mr.

Fitzpatrick began a side consulting business after separation, which has significantly increased his total annual income. Thus, the question that arises in the context of spousal support is whether, and to what extent, Mrs. Fitzpatrick is entitled to share in the post-separation increase in his income: Thompson v. Thompson , 2013 ONSC 5500 , cited with approval in Kohan v. Kohan , 2016 ABCA 125 .

Among the factors to consider are the strength of the compensatory claim and the nature of the contributions, whether the contributions can be directly linked to the post-separation increase in income, the duration of the relationship, whether the skills and credentials that led to the post-separation increase in income were obtained and developed during the relationship, etc. In my view, a detailed and meaningful consideration of these factors is not available on the record of this application. That said, at least on a prima facie basis, Mr.

Fitzpatrick appears to have compelling arguments militating against Mrs. Fitzpatrick sharing in his post-separation increase in income. Range [ 35 ] Mrs. Fitzpatrick argues that the Court should order spousal support at the high end of the range. As I discussed earlier in these reasons, I have found that Mrs. Fitzpatrick failed to fully disclose her financial affairs, including by failing to disclose all her bank account information. Courts do not look favourably on parties who fail to disclose. Non-disclosure has repeatedly been described by the Courts as the cancer of family litigation.

Parties who fail to disclose should not be rewarded. Moreover, as I noted earlier, Mr. Fitzpatrick’s post-separation income has increased substantially, including but not limited to an additional source of income that did not exist during the relationship. [ 36 ] This is a high conflict situation already with multiple interim decisions in the divorce litigation as well as the related condo litigation. A trial judge, having heard viva voce evidence, will be in a far better position to make a final determination as to the appropriate range. In Leontowicz v.

Leontowicz , 2020 ABCA 324 , the Court of Appeal held (at para 9) that “Interim support orders are intended to be temporary; they are often made on an imperfect record and are intended to strike an interim balance between the parties. It is expected that the matter will proceed to trial, at which time the trial judge can make necessary adjustments”. The Court went on to hold that the goal of an interim spousal support order is to ensure “an adequate level of support”.

[ 37 ] According to calculations made using Child View software, with Mr. Fitzpatrick’s 2023 guideline income of $266,317, Mrs. Fitzpatrick’s imputed income of $60,000, and Mr. Fitzpatrick’s $500 monthly contribution to

section 7 expenses, the range of spousal support payable pursuant to the Spousal Support Advisory Guidelines is $2,172 at the low end, $2,928 at the mid range, and $3,683 at the high end. [ 38 ] Given Mrs. Fitzpatrick’s failure to disclose financial information and the possibility that Mrs. Fitzpatrick may not be entitled to share in Mr. Fitzpatrick’s post-separation financial success for spousal support purposes, I am setting spousal support at $2,500, which is somewhere between the low and mid-range based on the parties’ incomes for 2023 and Mr. Fitzpatrick’s contribution to

section 7 expenses, and I am doing so on a go-forward basis only. I decline to retroactively adjust spousal support in the absence of complete disclosure. Finalization of spousal support, including arrears, can occur at trial, once Mrs. Fitzpatrick has remediated her financial disclosure and more fulsome evidence has been led on the issue of Mr. Fitzpatrick’s significant post-separation increase in income. Duration [ 39 ] I agree with Mrs. Fitzpatrick’s counsel’s submission that setting duration is an issue that is best left to the trial judge.

Conclusion [ 40 ] Commencing January 1, 2024, interim spousal support is set at $2,500 per month. Set-Off [ 41 ] Mr. Fitzpatrick seeks an order that any arrears ordered to be paid to Mrs. Fitzpatrick as a result of this decision be set off against a 7-page list of amounts he paid after separation while both parties continued living in the matrimonial home. According to him, these amounts included contributions to the parties’ and children’s expenses during that time. [ 42 ] In DBF v.

BF , 2017 ABCA 272 , the Court of Appeal held that the decision to allow a set-off is highly discretionary because it depends on an assessment or judgment of whether the set-off would cause manifest injustice. In my view, Courts should be cautious in authorizing a set-off, particularly on an interim application involving child support arrears. Authorizing a set-off in this case raises the real possibility of depriving the children. Child support is a right that belongs to the children and payments of child support benefit the children. [ 43 ] In this case, Mr.

Fitzpatrick submits that set-off is appropriate because the payments he made during that period of separation included payments for the children’s expenses. However, a cursory review of the expenses listed suggests that they largely consisted of amounts that cannot easily be traced to the children: payments to the shared HELOC, condo mortgage payments, house insurance, utility payments, and the like. I therefore decline to order any set-off at this interim stage. Decision-Making [ 44 ] Mr.

Fitzpatrick cross-applies for a series of orders that would allow him to meaningfully participate in parenting his children and participating in their lives. The orders sought would allow the children to have the benefit of their father’s presence and participation in decisions and matters affecting their lives and well-being. The orders sought are lengthy, and I have summarized them as follows: 1. Directing Mrs. Fitzpatrick to consult with Mr.

Fitzpatrick on matters relating to the health and welfare of the children by email, and to provide prompt notice of, and seek his consent to, all guardianship and major parenting decisions; 2.

Confirming that both parties, as parents and joint guardians of the children, are each entitled to receive notification of, and to participate in, all guardianship and major parenting matters in relation to the children, including, a. decisions regarding, inter alia , their day-to-day care, where they live and with whom they associate, their schooling and extra- curricular activities, their cultural linguistic, religious, spiritual and secular upbringing, their medical, dental and other health matters; b. the receipt of, and the ability to respond to, notices required by law to be given to a guardian, c. the receipt of information and records about the children’s educational, extracurricular activity, health, medical, dental, physical, psychological and emotional development, directly from their physicians, health providers, and caregivers, and the receipt of notice of all non-emergency medical and dental appointments a reasonable time in advance; d. to be notified by text and telephone in the event of any accident or emergency involving the children, and where time allows in emergency situations, to provide his consent to any urgent treatment of the children; 3. that in the case of non-emergency health decisions requiring the consent of one parent only, one parent shall not consent until they have consulted with the other parent; 4. listing both parents as the children’s parents and joint guardians, and as the primary emergency contacts for the children before any third party is listed, with all of the children’s schools, activity, health and other care providers; 5. directing that neither parent appoint a third party to act as a guardian for the children in their place and stead without the other parent’s consent;

6. providing for travel notices to be given to the non-travelling parent, and requiring, in certain defined circumstances, the travelling parent to seek consent from the other and to provide information such as an itinerary and contact information and to prohibit the children to travel without a parent or third party without the other parent’s consent; 7. requiring, in the case of passport applications or renewals, the consent of the other party; and 8. directing that consent in all cases not unreasonably be withheld; 9. requiring Mrs.

Fitzpatrick to not change the children’s residence to anywhere outside the NW quadrant of Calgary, and in the event of an intra-quadrant move, not exceeding 10 kilometres from the children’s residence without Mr. Fitzpatrick’s consent; 10. requiring Mrs. Fitzpatrick to provide changes to contact information relevant to communication and contact with the children; and 11. a broad non-disparagement clause and a clause prohibiting discussion with and involvement of the children in the divorce proceedings as well as the litigation involving Mrs.

Fitzpatrick’s parents. [ 45 ] In many respects, the Divorce Act , RSC 1985 c 3 (2 nd supp ) addresses many of the orders sought. For instance, pursuant to

section 16.4, a parent to whom parenting time or decision-making responsibility has been allocated, is entitled to request from another like-situated person information about the children’s well-being, including in respect of their health and education, or from any other person likely to have such information, and to be given such information by those persons. As the Mahoney Order allocated parenting time to both parents, Mr. Fitzpatrick meets the eligibility criteria set forth in

section 16.4 and has always been, and continues to be, entitled to ask for and to receive from Mrs. Fitzpatrick information described in that provision. Similarly, sections 16.7 to 16.9 require notices to be given in the case of a change of place of residence or a relocation of children. Lastly,

section 16.2(2) provides that the parent to whom parenting time is allocated has exclusive authority to make, during that time, day-to-day decisions affecting the children. Legislative Framework for Decision-Making Responsibility [ 46 ]

Section 7.1 of the Divorce Act requires a person to whom decision-making responsibility in respect of a child of the marriage has been allocated to exercise that responsibility in a manner that is consistent with the best interests of the children.

Section 16.1 of the Divorce Act authorizes the Court to make a parenting order providing for the allocation of decision-making responsibility for the children, and the Court may impose any terms, conditions and restrictions that it considers appropriate. As with all parenting orders, the Court is required to take into consideration only the best interests of the children, and in considering the best interest factors, to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being. The best interest factors are set out in subsection 16(3).

Parenting before Separation [ 47 ] As mentioned at the outset, Mr. and Mrs. Fitzpatrick commenced cohabitation in 2005, and married in 2007. Their first child, A, was born in 2009, followed by the second, T, three years later. Prior to having children, both parties worked outside the home; however, Mrs. Fitzpatrick did not work for several years when the children were very young. She later returned to work beginning in 2014, albeit in a part-time capacity. Mr. Fitzpatrick worked, uninterrupted throughout this period, as a software engineer. [ 48 ] It is generally not disputed that Mrs.

Fitzpatrick played a primary role in parenting the children prior to separation, particularly while the children were not in school full-time. Mrs. Fitzpatrick submits that the parties had an agreement that she would primarily raise the children full-time and that she would not go back to work. She further submits that she and Mr. Fitzpatrick made an agreement early in their relationship before having children that she would have sole decision-making responsibility for the children. [ 49 ] Mrs. Fitzpatrick was questioned about this agreement at length and Mrs. Fitzpatrick averred that she and Mr.

Fitzpatrick had discussions when they began dating about their respective roles and responsibilities. According to her, early discussions in the dating stage resulted in an agreement that Mr. Fitzpatrick would work outside the home to provide for the family, and that responsibility for the children, including decision-making responsibility, would be hers alone. I am not persuaded that any such agreement regarding the allocation of decision-making responsibility was reached prior to the parties having children. Mrs.

Fitzpatrick was unable to provide basic details about when and where this agreement was purportedly made. Moreover, the parties have been involved in protracted divorce litigation since 2020, including several parenting applications, and the purported existence of this agreement is being raised for first time in this special application. Mr. Fitzpatrick’s counsel attempted to pursue a line of questioning to confirm this, but the questions were refused on the basis of relevance. In my view, the questions were proper and should have been answered.

Lastly, and in any event, I find that it is unlikely that discussions about the assignment of decision-making responsibility for yet-to-be-born children would take place during the dating stage. [ 50 ] Regarding Mr. Fitzpatrick’s involvement as a parent prior to separation, Mrs. Fitzpatrick’s evidence tends to minimize it and she alleges that Mr. Fitzpatrick worked long hours or was often out of town due to work commitments. Mr. Fitzpatrick disputes Mrs. Fitzpatrick’s evidence, and he provided extensive and detailed evidence regarding his involvement in all aspects of parenting the children. I find that Mr.

Fitzpatrick was, prior to separation, involved in all aspects of parenting the children. He was a loving and engaged parent who spent as much time as he could with the children when not at work. His affidavit speaks in detail to the breadth of his involvement prior to separation. I have no doubt that the children benefited from and immensely enjoyed the time spent with their father prior to separation. Parenting After Separation [ 51 ] After the parties separated in early 2020, Mr. Fitzpatrick moved to the basement suite in the matrimonial home. He continued to parent to the children.

However, I accept his evidence that after an argument in May, Mrs. Fitzpatrick took the children to her parents,

where they stayed for a month and that he was denied any parenting time. I also accept his evidence that after Mrs. Fitzpatrick returned with the children to the matrimonial home, she increasingly restricted his time with the children. In July 2020, Mr. Fitzpatrick moved to his current residence. I accept his evidence that for a month following his move out of the matrimonial home, Mrs. Fitzpatrick denied him parenting. I have accepted all his evidence on this point because Mrs. Fitzpatrick did not deny it in her response affidavit and it is consistent with collateral evidence, including the report of Dr.

Jennifer Malcolm, discussed later in these reasons. [ 52 ] Prior to separation, the children attended public schools, and in September 2020, they were enrolled to continue in-person at their regular schools. However, Mrs. Fitzpatrick decided, without consulting with Mr. Fitzpatrick, that the children would attend online learning through the Calgary Board of Education starting in September 2020, though by the end of that month, she changed course and registered the children in a hybrid program through a private Christian school.

As I understand, in the latter program, the children attend in-person one day a week and for the remainder, they attend online from home. It is unclear why Mrs. Fitzpatrick decided to remove the children from public school, and worse, why she did so without consulting or involving Mr. Fitzpatrick, or seeking his consent. The record is also clear that when Mr. Fitzpatrick objected to the change, Mrs. Fitzpatrick frustrated any efforts to consult or discuss the matter. [ 53 ] Mrs. Fitzpatrick’s pattern of excluding Mr. Fitzpatrick in decision-making is evident from her questioning.

With respect to matters pertaining to the children’s health, she cited privacy concerns as a reason not to inform Mr. Fitzpatrick. With respect to extra- curricular activities, she refused to provide information to Mr. Fitzpatrick, because that was “under [her] jurisdiction”. [ 54 ] Pursuant to the Mahoney Order, the parenting

schedule was divided into two-week periods, with the children spending approximately 9 days with Mrs. Fitzpatrick and 5 days with Mr. Fitzpatrick, and for equal time with their parents during the December holidays. Justice Mahoney directed that the issues of, inter alia , the children’s schooling, parenting and guardianship decisions would be determined at a two-day oral hearing in February 2021. [ 55 ] The record is clear that Mrs. Fitzpatrick did not follow the Mahoney Order as it related to parenting generally, but also to shared holiday parenting time. This led Mr.

Fitzpatrick to seek an emergency order on December 31, 2020. On that date, Justice Kiss granted an order in which she confirmed the parenting scheduled in the Mahoney Order and ordered make-up parenting time to Mr. Fitzpatrick. Her order also included a police enforcement clause. Despite Justice Kiss’s order, further issues arose during Mr. Fitzpatrick’s make-up time at an outdoor community ice rink where Mrs. Fitzpatrick was present, and Mr. Fitzpatrick phoned police to seek assistance in enforcing the parenting order.

It is not necessary to elaborate on the details of this incident, except to say that both parties acted poorly, made the wrong choices, and did not act in their children’s best interests. Despite shared responsibility for the ice rink incident, Mr. Fitzpatrick has borne the brunt of its fallout as this incident appears to be the root cause of T resisting parenting time with Mr. Fitzpatrick since that time. [ 56 ] As for the February 2021 oral hearing, it did not proceed. Instead, it was adjourned sine die , on consent, to allow for a practice note 7 or practice note 8 (“PN8”) assessment to be completed.

After the adjournment, Mrs. Fitzpatrick reneged on her agreement to the proposed parenting assessor. [ 57 ] In early April 2021, Mr. Fitzpatrick attended at Family Docket Court to seek a PN8 assessment and Justice Hollins directed him to make an application in Family Chambers. She also directed the parties to attend with Resolution Counsel on August 31, 2021 to deal with all other remaining issues. [ 58 ] On May 6, 2021, Justice Lema granted the PN8 assessment after a contested hearing in Family Chambers.

As for the court- ordered 2.5-hour meeting with publicly-funded Resolution Counsel scheduled for August 31, 2021, Mrs. Fitzpatrick attempted to cancel it, but Mr. Fitzpatrick would not agree to adjourn, having submitted his updated financial disclosure, a litigation plan, and all other items requested of him in advance by Resolution Counsel. Resolution Counsel’s report indicates that the “meeting did not proceed because: at the outset of this RC Meeting, Ms. Fitzpatrick announced that she is only available for one hour and that she will not agree to anything.” PN8 Assessment Report [ 59 ] Despite Mrs.

Fitzpatrick’s opposition to the PN8 application, she complied with the PN8 assessment process, and Dr. Jennifer Malcolm completed the evaluation between May and October 2021. Although Dr. Malcolm’s extensive report was provided to me, I did not hear from her directly. Her report, dated November 5, 2021, details the evaluation process, provides analyses of the parental conflict, including the concerns regarding alienation, as well as a

summary of recommendations. Evidently, a significant period has elapsed since the report was completed. That said, I nonetheless consider it important to note the several recommendations made by Dr. Malcolm and how the parties responded to them. In doing so, I have generalized her recommendations and the reasons for same, in the interests of each party’s privacy interests. [ 60 ] Of particular importance to this application, Dr.

Malcolm indicated that the parties’ elder daughter, A, required therapeutic support with a therapist adopting a trauma informed approach to work through various incidents that occurred during the separation, including the incident that occurred in the ill-fated make-up time. Guided by A’s readiness, the therapy would also involve Mr. Fitzpatrick and focus on building a secure and healthy relationship. Dr. Malcolm indicated that it was imperative that the work be monitored and reassessed to ensure the process does not stall, failing which “A is at risk of losing the relationship with her father”. Dr.

Malcolm noted that “having a high-quality relationship is of greater benefit to A’s development than focusing on the amount of time she spends with each parent”. Dr. Malcolm also emphasized the need to include Mrs. Fitzpatrick in A’s therapeutic work “so she can learn how to best support A’s relationship with her father”, indicating some specific areas for improvement. Dr. Malcolm also recommended that Mr. and Mrs. Fitzpatrick each participate in individual therapy. [ 61 ] Dr. Malcolm also addressed Mr. Fitzpatrick’s concerns regarding alienation. She provided a delicate and nuanced assessment on this point.

That said, her conclusionary remarks bear repeating: Although Mrs. Fitzpatrick expressed her hope that her children will be able to enjoy a close relationship with their father and indicated that she believes it is in the children’s best interests to have positive relationships with both parents, there is evidence that she has, in

subtle and non-subtle ways interfered with Mr. Fitzpatrick’s parenting time. This needs to stop; in the end it will only harm the children and has the potential of disrupting her own relationship with the children. Ms. Fitzpatrick requires support to be able to appropriately assist the children in building a strong relationship with their father. [emphasis added] [ 62 ] Lastly, on decision-making responsibility, Dr. Malcolm concluded that Mr. and Mrs.

Fitzpatrick are not in a place where they are able to make joint decisions, as they each struggle in their ability to support positive transitions, to speak positively about the other, to prioritize the children over the conflict, to be flexible when problems arise and to regulate their own emotions under pressure. Given this, Dr. Malcolm concluded that it may be better to have one parent make decisions, provided they are acting in the children’s best interests. Given that the children are living primarily with Mrs. Fitzpatrick, and that Mr. Fitzpatrick has been isolated in his parenting role, Dr.

Malcolm’s report seems to suggest that decision-making responsibility should be given to Mrs. Fitzpatrick. In that regard, Dr. Malcolm noted that Mrs. Fitzpatrick seems to have “adequate judgment” with respect to the children’s educational and health needs. Implementation of the Recommendations from the PN8 Report and Subsequent Events [ 63 ] As noted earlier, several key recommendations were made in the PN8 Report.

Unfortunately, the parties have not carried out what was recommended for them or for the children, including the recommendation that the parties’ elder daughter, A, “ requires therapeutic support with a therapist adopting a trauma informed approach”. [ 64 ] In questioning, Mrs. Fitzpatrick agreed that Dr. Malcolm made the recommendations, but when Mrs. Fitzpatrick was asked whether she agreed with Dr. Malcolm’s recommendation for therapy for the children, she said “yes and no”, indicating that the children did not need therapy. When pressed, not only did Mrs. Fitzpatrick disagree with Dr.

Malcolm’s statement that A required therapy, but she also insisted that she alone could determine whether A needed therapy. Instead, Mrs. Fitzpatrick justifies her refusal by pointing to letters written by the music teacher and the art teacher in which they observe that the children are doing well. While I do not doubt the sincerity of those people, their views are not a suitable or appropriate substitute for the opinion of a parenting expert, like Dr. Malcolm. In refusing to follow through with the required therapy, I find that Mrs.

Fitzpatrick is not, and has not been, acting in A’s best interests and that she has caused harm to A’s emotional and psychological well-being. [ 65 ] Dr. Malcolm also recommended that each of Mr. Fitzpatrick and Mrs. Fitzpatrick participate in individual therapy. Neither has done so, either at all, or in a manner that is consistent with Dr. Malcolm’s recommendations. [ 66 ] In Mr. Fitzpatrick’s case, he deposes to having a therapist whom he sees regularly. That person’s LinkedIn profile as well as a letter summarizing services received were produced in an undertaking response.

In my view, that person’s educational background (kinesiology / holistic health promotion), service descriptor (Lifestyle Architect / Health Promotion Specialist / Life Coach), accreditations (College of Kinesiologists of Ontario) as well as the services provided, were not of the type that Dr. Malcolm was recommending. While Mr. Fitzpatrick may benefit from the services provided, they do not appear suitable in assisting Mr. Fitzpatrick in the areas identified by Dr. Malcolm. [ 67 ] As for Mrs. Fitzpatrick, she has not engaged in any therapy after Dr. Malcolm’s report was issued. In her affidavit, Mrs.

Fitzpatrick deposed to having attended therapy prior to the evaluation, but has not since that time. Her response to an undertaking provided additional information about the professional she attended with, and her qualifications. Unlike Mr. Fitzpatrick, this therapist appears to possess the requisite education and experience that might assist Mrs. Fitzpatrick, should she choose to pursue therapy recommended by Dr. Malcolm. [ 68 ] By failing to follow through with Dr.

Malcolm’s recommendations that each attend individual counselling for the therapeutic goals identified, I find that their inaction demonstrates their inability or unwillingness to care for and meet the needs of their children. Dr.

Malcolm’s recommendations were made in the context of a parenting evaluation for multiple purposes, including but not limited to ameliorating the parties’ respective abilities to navigate the co-parenting relationship and to find agreement on important matters of concern to their daughters. [ 69 ] Since completion of the PN8 report, matters have further deteriorated, largely at the expense of Mr. Fitzpatrick’s relationship with the children and his time with the children has become essentially non-existent. There is considerable evidence that Mrs.

Fitzpatrick has either carelessly or intentionally exposed the children to this litigation as well as the condo litigation, as evidenced by texts between A and her father as well as the manifestly untruthful contents of the poster at her parents’ condominium building and on social media platforms. I find that Mrs. Fitzpatrick’s actions demonstrate that she is either unable or unwilling to support the development and maintenance of her children’s relationship with Mr. Fitzpatrick. [ 70 ] In August 2022, Mr. Fitzpatrick applied for an order to sell the condo where Mrs.

Fitzpatrick’s parents reside, which was granted by Justice Harris. Mrs. Fitzpatrick was subsequently found to be in civil contempt for failing to comply with the order for sale (see: Fitzpatrick #1 ). Although the subject-matter of that application is not germane to this application, a series of text messages between A and Mr. Fitzpatrick demonstrate that Mrs. Fitzpatrick has failed to shield the children from this litigation and the condo litigation. Before describing the text message exchanges, I will note parenthetically that the tone and messaging that Mr.

Fitzpatrick utilised in these text messages followed the formulation recommended in the PN8 report, whereby Mr. Fitzpatrick relates his feelings to his daughter, that he has missed her and that he would like to spend time with her. A did not respond to Mr. Fitzpatrick’s first 3 messages (which were sent at weekly intervals). However, after the fourth, she responded: I thought you made your choice clear condo or me and [T] you chose condo so why are you still texting the same thing you sound like a robot? [ 71 ] However hurtful that message may have been to Mr.

Fitzpatrick, he responded appropriately, confirming his love for his

daughter, his desire to be engaged and involved in her life. She responded with a text, stating in part: “the only way you can possibly get me back is to stop selling the condo” and that she is “not willing to tell [Mr. Fitzpatrick] who [she is] spending time with and what’s going on in [her] life till the condo is NOT SOLD”. [ 72 ] Mrs. Fitzpatrick was asked a series of questions about this exchange. Importantly, she stated that she had no concerns about the content of the texts. The only concern she expressed is that the texts were attached to Mr. Fitzpatrick’s affidavit.

She denied doing anything to harm the children’s views or perception of Mr. Fitzpatrick. I find that these texts demonstrate that Mrs. Fitzpatrick has not shielded the children from the litigation, and that her inaction has had a significant impact on their relationship with Mr. Fitzpatrick. [ 73 ] More recently, in June 2023, Mrs. Fitzpatrick wrote a non-private post on Facebook and on Instagram, that includes the following: For your information: MY PARENTS ARE NOT VOLUNTARILY OR WILLINGLY SELLING THEIR RETIREMENT HOME. They have worked hard all their lives and invested their life savings into this Condo.

My rights as an “Owner” were violated and taken away by a judge. My parents’ basic rights were taken away (they are the rightful owners as they have paid for everything, including the down payment and continue to do so by paying Condo Fees, Property Tax and any other costs that arise). On August 18, 2022 a judge decided that the only rights my parents retain are to continue paying off the mortgage. My parents have been fighting to keep a roof over their heads ever since, they went as far as trying to buy it back (again), WITH NO SUCCESS. On June 21, 2023 they were forced to vacate the building. ...

I have enough proof that my parents are the rightful owners. After having their rights and life savings taken away, they were forced to get involved in a costly and ugly court case. They filed a STATEMENT OF CLAIM and LIS PENDENS. It is still ongoing and will likely not be resolved until they run out of money or energy. At the age of [xx] both of my parents cannot endure this amount of stress for much longer.

I would also like to draw attention to another incident that took place on October 27, 2022: My Ex managed to change the lock on my parents’ Condo without notice or permission with the help of two tenants living on the 2 nd floor in the 3000-building complex. The Locksmith Company [name omitted] did not bother to confirm the identity of the person who ordered the lock to be changed. There was also no court order in place permitting the change of locks . ...

Petra [emphasis added] [ 74 ] In Fitzpatrick #1 , Justice Harris addressed the underlined portion of the above relating to the issue of the locks, as follows: [14] The realtor, Ms. Fitzpatrick and Mr. Doerfler then exchanged emails discussing a walk-through and keys for access to the condominium although no progress was made. On October 12, 2022, Mr. Doerfler emailed the realtor to request a meeting to discuss the issue of keys and the walk-through. He also advised that there was a caveat pending against title to the condominium.

The realtor responded, requesting a meeting and a walk-through, keys for access and requested permission to have photographs taken for the listing. Mr. Doerfler responded: “Dear Ashley, Nice try, but I asked for a meeting to discuss our options. If you are interested in that, surely we can meet tomorrow…” [15] According to Mr. Fitzpatrick, the realtor concluded that she could not meet with Mr. Doerfler as that put her outside of her professional role. [16] On October 5th, Mr. Fitzpatrick filed a notice to attend docket court seeking a date for an application to cite Ms.

Fitzpatrick in contempt of court for failing to comply with my August 18th Order. Subsequently, Mr. Fitzpatrick received an offer to purchase the condominium from the Doerflers. He states that the offer was “well below market value, and certainly not pursuant to a formal real estate appraisal”. He has never seen the appraisal that Ms. Fitzpatrick says her father had obtained in September. [17] On October 27th, Mr. Fitzpatrick attended the condominium with a locksmith to change the locks. The locksmith made five copies of the new keys so that the Doerflers, each of the parties and the realtor would each have keys.

Mr. Doerfler arrived home as this was occurring. Once the locks were changed, Mr. Fitzpatrick gave Mr. Doerfler two keys, then drove to Ms. Fitzpatrick’s home to provide her a key. [18] The following day, Mr. Doerfler had the lock rekeyed, which prevented the realtor and Mr. Fitzpatrick from having access to the condominium once again. [19] Ms. Fitzpatrick did not appeal my August 18th Order. [ 75 ] Justice Harris’s finding that Mrs. Fitzpatrick was in contempt was largely predicated on the issue of the keys, finding that:

[40] The following provision, paragraph 3(e), states: The Plaintiff/Respondent, PETRA FITZPATRICK, to provide keys for the condominium property to the listing realtor, to facilitate access to the matrimonial home during viewing hours. [41] Ms. Fitzpatrick swore in her November 15, 2022 affidavit that she does not have keys to the condominium. I note that she did not swear to that in her affidavit of August 3, 2022, which was the evidence I had before me in making the August 18 th Order, nor did she raise that during the August 18 th application. [42] I further note Mr.

Doerfler’s evidence that “…my daughter, Petra does not now, and has not since August 18, 2022 ” had a key to the condominium (emphasis added). [43] The only conclusion that can be reached from this evidence is that upon hearing my August 18 th decision, Ms. Fitzpatrick immediately gave the keys she had to the condominium to her parents. Further, I conclude that this was done to avoid compliance with my August 18 th Order because it allowed her to advise the listing realtor that she had no keys to provide. [44] Even if this conclusion is wrong, the fact remains, Ms.

Fitzpatrick was and continues to be a registered owner to the property. As such, she has the right to a key to the premises. Despite this right, she failed to either keep her key or failed to require her parents to provide her with a key. The purpose of this was to avoid compliance with my August 18 th Order. [45] Does this render Ms. Fitzpatrick in contempt? I conclude that it does.

I am satisfied beyond a reasonable doubt that despite having actual notice of my August 18 th Order (because she was in court when it was granted) she intentionally took steps to avoid providing keys to the listing realtor despite the clear direction in the August 18 th Order to do so. Ms. Fitzpatrick is in contempt of paragraph 3(

e) of the August 18 th Order. [46] Turning to paragraph 3(

d) of the August 18 th Order, I also conclude that Ms. Fitzpatrick is in contempt of that provision, which requires her to cooperate with the listing realtor. She failed to cooperate because she, at the very least, failed to provide the realtor with keys or as a registered owner, failed to require her parents to provide the keys. [47] Ms. Fitzpatrick and the Doerflers argue that a requirement to “cooperate” with the listing realtor is too vague to form the basis for a finding of contempt because it does not specify how they are to cooperate with the listing realtor. [48] In Ms. Fitzpatrick’s case, I disagree. When paragraph 3(

e) is read in conjunction with the requirement to cooperate, it is readily apparent that Ms. Fitzpatrick was obliged to cooperate by, in part, providing the realtor keys to the condominium. She failed to do so and took active steps to avoid that obligation. [ 76 ] I have set out the contents of the Notice and portions of Justice Harris’s decision not only to demonstrate the lengths to which Mrs. Fitzpatrick will go to discredit and disparage Mr. Fitzpatrick with false information, but also because these posts are in plain sight of the children. Mrs.

Fitzpatrick’s counsel argues that there is no evidence that the children have seen the post, and in her oral submissions to the Court, she invited me to take judicial notice of the fact that nobody under the age of 40 has a Facebook account. I decline that invitation, largely because I know of people under the age of 40 with a Facebook account. I would also decline to do so based on my judicial experience of presiding over numerous bar admission ceremonies for lawyers in their late twenties or early thirties, where fodder for the application is often taken directly from those lawyers’ Facebook pages.

In any event, Mrs. Fitzpatrick admitted in questioning that she had also posted this to Instagram and I will take judicial notice of the fact that Instagram is a social media platform that is popular with the under-40 crowd, including with children of the same age as the parties’ children. [ 77 ] In her report, Dr. Malcolm addressed Mr. Fitzpatrick’s then concerns regarding alienation and negative messaging as follows: Mr. Fitzpatrick’s concerns regarding his children receiving negative messages about him and Ms. Fitzpatrick interfering with his parenting time, in part seem warranted.

I do not believe this interference reaches the level of alienation. Both A and T reported covertly overhearing adult conversations in Ms. Fitzpatrick’s home. Although perhaps not intentional, Ms. Fitzpatrick needs to be more aware of this potential. [emphasis added] [ 78 ] In my view, the series of text messages between T and Mr. Fitzpatrick as well as the public social media posting regarding the condo litigation demonstrate that Mrs. Fitzpatrick has failed to heed to Dr.

Malcolm’s advice to be more intentional in shielding the children from the adult conversations, particularly those pertaining to this litigation and the condo litigation. Whether these subsequent events would lead Dr. Malcolm to revise her conclusion regarding alienation will be left to another day. That said, in failing to shield the children from the condo litigation, as demonstrated in the above two examples, Mrs. Fitzpatrick has failed to act in the children’s best interests, and her inaction demonstrates her inability or unwillingness to support the development and maintenance of their relationship with Mr.

Fitzpatrick. Decision-Making Responsibility [ 79 ] With this background, I now turn to consider Mr. Fitzpatrick’s cross-application for meaningful involvement in shared decision-making. Mrs. Fitzpatrick’s counsel relies on Dr. Malcolm’s finding that Mrs. Fitzpatrick has “adequate judgment” with respect to the children’s medical and educational needs and that Dr. Malcolm reports that the children are doing well in school. As I have previously noted, it is important to put Dr. Malcolm report in its temporal and evidentiary contexts.

Specifically, the report was completed in 2021 and is based on the events as they stood to approximately the end of October 2021. Subsequent events may lead Dr. Malcolm to different conclusions.

[ 80 ] Although arising in an application for contempt and reversal of primary parenting in the context of parental alienation generally, in my view, the options described in JLZ v CMZ , 2021 ABCA 200 at para 63 can be adapted to be applied in the assignment of decision-making responsibility as follows: Do nothing and leave decision-making with the alienating parent; Direct a decision-making reversal by assigning responsibility to the rejected parent; Leave decision-making with the favoured parent and order therapy; or Provide a transitional placement where decision-making responsibility is assigned to a neutral party, such as a parenting coordinator, and therapy is provided so that eventually decision-making responsibility can be assigned to the rejected parent. [ 81 ] In my view, considering the best interests of A and T, Mr.

Fitzpatrick’s application should be granted. He does not seek sole decision-making responsibility. Rather, he is seeking meaningful participation and input in the decisions affecting the health and education of his children. There is no evidence before the Court that would suggest that he is unwilling or unable to act in the children’s best interests. That said, I also agree with Dr. Malcolm’s assessment that Mr. and Mrs. Fitzpatrick are unable to make joint decisions and that it would be better to have one parent make decisions. Despite my findings that Mrs.

Fitzpatrick has, on several occasions, not acted in the children’s best interests, I am unable to conclude that she does not possess adequate judgment to make decisions as they relate to the children’s health and education. Therefore, on an interim basis only, I will nonetheless assign decision-making responsibility to Mrs. Fitzpatrick, subject to the following conditions: 1. Mrs. Fitzpatrick shall consult with, and provide quarterly written updates and information to Mr.

Fitzpatrick, regarding the health and welfare of the children by email, and she shall provide prompt notice to him of, and shall seek his consent, to all guardianship and major parenting decisions involving the children’s health (including mental health) and education. Mr. Fitzpatrick shall not unreasonably withhold consent. In the event of disagreement, Mrs. Fitzpatrick will have final decision-making responsibility. However, before making any such decision, Mrs. Fitzpatrick shall meaningfully consider Mr. Fitzpatrick’s input, shall subsequently advise Mr.

Fitzpatrick of her decision and provide, by email, brief written reasons for each such decision. Her reasons should sufficiently explain how Mrs. Fitzpatrick considered Mr. Fitzpatrick’s input and, if it was not accepted, the reasons for rejection. 2. Mrs. Fitzpatrick shall, forthwith, directly or through her counsel, contact Dr. Malcolm to further consult regarding potential referral sources in respect of the required therapy for A, shall select from the referral sources provided, and shall ensure that the therapy is undertaken at the earliest opportunity. Mrs.

Fitzpatrick is directed to follow any additional recommendations given by Dr. Malcolm as well as any other professional therapists involved in A’s therapy. 3. Mr. and Mrs. Fitzpatrick are directed and urged to reconsider their respective decisions in response to Dr. Malcolm’s recommendations for individual therapy. [ 82 ] I summarized the other broad relief sought by Mr. Fitzpatrick as it relates to or incidental to decision-making in his cross- application at para [44] of my reasons. The relief sought is reasonable and I would order that it be incorporated into the order resulting from these reasons.

Given the nature of a half-day special application, these were not discussed in detail. In the event of disagreement, the parties may provide their draft orders to me with brief written submissions not exceeding 3 pages on the contested points. Costs [ 83 ] Success on the application and cross-application was mixed. Subject to further submissions from the parties, each party should bear their own costs. If the parties are unable to agree on costs, they have leave to make brief submissions, not exceeding 2 pages. Heard on the 19 th day of July, 2023.

Dated at the City of Calgary, Alberta this 8 th day of December, 2023. M.H. Bourque J.C.K.B.A. Appearances: S. Lusignan

for the Applicant/Cross-Respondent A. Harris for the Respondent/Cross-Applicant