Ghiyas v Khan, 2023 ABKB 274

Court of King’s Bench of Alberta Citation: Ghiyas v Khan, 2023 ABKB 274 Date: 20230512 Docket: 4801 187583 Registry: Calgary Between: Nuha Ghiyas Plaintiff - and - Imranullah Khan Defendant _______________________________________________________ Reasons for Decision of the Honourable Justice R.E. Nation _______________________________________________________ [ 1 ] This trial was about the child MK, and the best parenting plan for her. The issues identified by the parties were: (

a) What shall be the Mother and Father’s parenting schedule/plan with MK that is consistent with MK’s best interests? (

b) Has the mother engaged in parental alienation? (

c) Has the Father engaged in family violence as defined in section 2(1) of the Divorce Act ? (

d) Whether the parents shall have joint major decision-making for MK. (

e) Whether the Father shall have access to all MK’s records in relation to medical, educational and extra-curricular activities. 1. The Child [ 2 ] All too often, litigation about a parenting plan focuses on each parent’s views, challenges and situation, and this litigation in a high conflict situation is no exception. As this trial is about MK and what is best for her, this decision appropriately begins with a discussion about MK and her needs.

[ 3 ] MK is 5 years and 7 months old. She was born in Calgary in 2017 and lived with her parents in Calgary, then in Ontario until January 2020 when the parties briefly separated. Ultimately, they returned to Calgary and reconciled from February 2020 until the parents’ final separation in September 2020.

The exact involvement of each parent in the day-to-day parenting of MK while the parties lived together is in dispute, however, the evidence is clear that the parents co-parented MK from birth, and she was at times left alone with her Father when the Mother started to work outside of the home part time in December 2019 for two months and then full-time starting July 2020.

The maternal grandmother has lived in Calgary with the Mother and has been helping with childcare since March 2020. [ 4 ] There was no contact between MK and her Father from separation other than some Zoom calls until February 2021, when MK started to have supervised access with her Father. In April 2021, by court order, the Mother was given interim residential care and control of MK, as well as sole day-to-day decision making responsibilities. Supervised access continued to trial, with various changes of supervisors and periods of disruption during certain periods when MK was ill, or other issues arose.

Supervised access was originally every second Saturday and Sunday for up to 5 hours, as well as Facetime contact every Monday, Wednesday and Friday for 30 minutes. Supervised access on Tuesday and Thursday for up to 3 hours was added later. The latest interim order allows supervised visits on Tuesdays from to 3:00 PM to 7:00 PM, Fridays from 2:30 PM to 7:30 PM and Saturdays from 12:00 PM to 8 PM. Video contact is now permitted on Wednesdays, Thursdays and Sundays.

Currently, when the Mother is working and MK is at home, she is looked after by her maternal grandmother. [ 5 ] MK attends kindergarten for half-days in the mornings and all indications from her school report cards is that she is doing well at school and socially fits into the program at school. She missed 29 of 184 school days in the school year 2021/2022, largely explained by illness (MK had both Covid-19 and pneumonia in 2022). MK also attends an Arabic class five days a week for 1 hour.

In the past she attended in-person, but it is currently an online program. [ 6 ] MK was enrolled by her Mother in a Kidstrong program, which is her only sports or extra-curricular activity. [ 7 ] MK at times resists or expresses concerns about leaving her Mother’s house to go and see her Father, but the supervisors report that, when she reaches her Father’s house, she is happy to see him and enthusiastic.

When leaving her Father, she often expresses a wish to spend more time with him. [ 8 ] MK has had some counselling, originally with Maigan Birse, attending approximately nine sessions from November 11, 2021, to August 4, 2022. This involved play therapy. Ms Birse expressed no specific concerns about MK. Currently, MK sees a registered psychologist, Crystal Popke, who describes MK as doing fairly well. Though she presents with some signs of anxiety, there are no red flags for any major conditions. She “engages well and is pretty bright.” [ 9 ] MK was assessed by Dr.

Singh, who did a Practice Note 8 intervention, (which will be discussed in more detail later in this decision). His opinion was that MK does not face imminent risk of significant harm to her safety, security or well-being. She does not present as having significant unmet needs. She has strong and secure relationships with both her parents, and a warm and comfortable bond with each.

She has two supportive grandmothers in her life. [ 10 ] The largest problem for MK is that her parents do not communicate well, and they have been engaged in very high conflict litigation, with each personally feeling that a lot is at stake. This has a detrimental influence on MK and will continue to do so if the high conflict nature of the dispute persists.

Unfortunately, neither parent has insight into how their own conduct feeds into the communication problem, and neither has done much to decrease the high conflict nature of this litigation. [ 11 ] At the age of 5, MK has not been assessed by a credible professional as suffering from her parent’s conflict. However, it is clear she is aware of it. Neither parent can see that this is a five-year-old desperate to have the love of both parents, and caught in the middle of their conflict of which she is aware, but responds to with the limited sophistication of a five-year-old. 2.

The Law [ 12 ] The applicable law is not in issue. Section 16 (1) of the Canada Divorce Act , RSC , 1985, c 3 (2nd Supp ) states that the Court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order. [ 13 ] Section 16 (2) directs that the Court is to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being, in considering the 11 enumerated factors in section 16(3) relevant to the child including: (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) t he nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (

d) the history of care of the child; (

e) t he child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(

i) t he ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) t he ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. [ 14 ] The Divorce Act also provides that, in allocating parenting time, the Court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child (section 16(6)). 3. The Facts [ 15 ] Generally, in a custody case, a great deal of the decision is setting out the findings of fact of the trial judge.

This case, as set out in the amended procedural order, involved a trial record of 20 affidavits of the parties, all the supervised visit reports with affidavits of each of the supervisors, and transcripts of questioning. From these documents, there are certain consistent themes: (

a) The Mother asserts that she was the victim of family violence. She is hyperalert to certain behavior of the Father, and very protective of MK. She is concerned that his controlling behaviour will be used in a manner that does not benefit MK, as it has been used against herself. (

b) The Father asserts that he has done nothing wrong in the relationship, blaming the Mother for alienating the child. He wants to have maximal time with his daughter. (

c) The parents do not communicate well, they each see the conflict through their limited view of the situation and are each engaged in and focused on “winning” this case, each with little understanding of what this does to the child, and each convinced they have the right view of the facts and the correct understanding of the situation. (

d) There have been extensive court applications by the Father to increase his visitation time with MK.The court file can be measured in box numbers, and it is clear that both parties are using the court system to determine their dispute, as opposed to looking to their failures to communicate. Each parent is so invested in their point of view: the Mother alleges that the Father was violent and wants to stop him from seeing MK unsupervised; and the Father is convinced he has done no wrong and is being kept from seeing his daughter. (

e) There is an extremely low level of trust between the parents. This started as early as 2018 when the Mother started tracking the Father’s phone, due to suspicions about infidelity. It has continued on throughout the separation: with the Father convinced the Mother manufactured any domestic violence and the flight risk allegations to get the upper hand in the divorce. The Father’s manipulative conduct and controlling nature continues to be a problem, for example, his complaint to the Audiology Board. (

f) Both parents seem unable to understand how their own perceptions are contributing to the lack of trust. Dr. Singh confirmed this in his evidence but indicated that the Mother may have more insight into her own situation than the Father. 4. Professional Interventions [ 16 ] There have been numerous attempts to involve professionals with the family and MK in an attempt to see what interventions may be possible or helpful. [ 17 ] The first was a Practice Note 7 intervention completed by Dr. James Tittemore. His report, dated July 17, 2022, was entered at trial for the truth of its contents. Dr.

Tittemore commented on the “he said, she said” nature of the information from the parents, and how their perceptions of events and information was diametrically opposed. He observed MK separately with her Mother and her Father and found their interactions positive. Based on his observations, although limited in time, he had no concerns, nor did he observe any evidence of risk factors. He concluded that, although each parent appeared to believe they were acting in the best interest of the child, the ongoing conflict was resulting in stressful circumstances for MK.

She was being caught in the middle, being forced to try to deal with and attempt to reconcile her parents’ attitudes, actions and possible manipulations. [ 18 ] He found that the parents: “do not like each other and do not trust each other, and each parent assumes the worst of the other’s motives and intentions, in terms of manipulation and self-focused, vindicative behaviors.

In light of the myriad claims, accusations and allegations levied by each parent against the other, this conflict will be ongoing for the foreseeable future, unless significant relationship intervention occurs”. [ 19 ] He recommended two directions of intervention: (1) positive, hands-on, educational intervention, i.e., a parenting coordinator, with full cooperation of both parents, and (2) a further in-depth assessment (pursuant to Practice Note 8) to assist the court.

He also recommended that, until all parenting related issues are resolved, MK should engage in ongoing therapeutic intervention. [ 20 ] The second intervention was by Dr. Terry Singh, who performed a Practice Note 8 Child Custody/Parenting Evaluation report, dated January 26, 2023. It is a comprehensive 89-page document. Dr. Singh was a witness at trial, his report was made an exhibit

and he was made available for cross-examination by counsel for each parent. [ 21 ] Dr. Singh reported on the psychological testing that was performed. He found the testing showed the Mother had indications of impression management, overreported difficulties she may be facing and that she is likely suffering from anxiety and stress. The Father’s testing showed indications of impression management, specifically that he may have underreported difficulties he was facing.

His responses to the self-administered screening tool known as a Child Abuse Potential Inventory suggested he was attempting to present himself in an overly positive manner. His responses were thus invalid and were not interpreted, except to the extent that Dr. Singh could not rule out that the Father is a risk. His testing presented his relationship with the child in an overly positive manner and his answers to testing on sources of stress was defensive and likely invalid. The Father downplays his problematic behaviours. [ 22 ] The home visit with each parent and Dr.

Singh’s observations of the parents with MK were normal and unremarkable. [ 23 ] Dr. Singh had significant concerns about both parents’ ability to behave as friendly co-parents and saw a need for ongoing assistance with any co-parenting. He suggested a parallel parenting model of co-parenting and minimizing contact between the parents, primarily to keep the child out of the middle of the parental conflict. He found the parents to be in need of co-parenting assistance and suggested a parenting coordinator/arbitrator for at least two years. He suggested a 2-2-3 parenting schedule.

He suggested psychological support for the Mother due to her anxiety and stress, and in his evidence in court he suggested assistance for the Father if he did not cease his controlling behaviours. 5. The Supervised Visits [ 24 ] All supervisors were aware of the high tension between the parents. When visits started, they were supervised by a family friend, Zohair Khan. These visits were from June to September, 2021.

He testified that he found the whole situation too confrontational and complicated, and he stepped away. [ 25 ] Most subsequent supervisors were paid and worked for or under the supervision of Kidscope Family Services. Dan Anderson (February to June, 2021), Gurmeet Kalsi (June 2021 to current; also translator during visits supervised by Dan Anderson), Harleen Briar (December 2021), Kiran Noaman (June to October, 2022), and Carol Hull (November 2022 to present). All supervisors report that MK enjoys the visits with her Father and nothing inappropriate has been observed.

Most supervisors also commented that the Mother facilitated the visits and changes of times and dates that were necessary.

The Mother initially insisted a translator be available to understand and translate all conversations between the Father and MK during the visits. [ 26 ] All supervisors were called as witnesses at the trial by the Father to confirm they saw no problem with the Father as a loving parent and also to confirm various statements that they had overheard MK say during the visits or transport, which the Father argued show that the Mother is trying to alienate the child. [ 27 ] Examples of the statements testified to by the Father include a statement that, in the first video call on November 10, 2020, MK said to him “Abu, you are a bad boy.

You broke Mama’s glasses” and, after the first supervised visit, “Abu, you pushed me and I got a booboo, my Mother told me”. [ 28 ] Gurmeet Kalsi reported that MK said: “Mumma told me Abu is a bad boy” and “Mumma said don’t go to Abu’s house.” Kiran Noaman reported some statements by MK that the maternal grandmother had told her not to go to her Father’s house. [ 29 ] Gurmeet Kalsi, in her written notes, indicated that several times MK has talked about her Father and Mother in the context of wishing they could live together.

Carol Hill reported some comments by MK that she was upset her Mum and Dad were not together. [ 30 ] The evidence of Gurmeet Kalsi was very contradictory and, quite frankly, it is difficult to give much weight to much of what she said. She suggested each parent had written parts of the visit reports but was clearly confused when specifics were put to her. She contradicted evidence as to whether, on August 2, 2021, MK was too exhausted after seeing the doctor to visit her Father. She did not write the reports of her visits, the reports given to the parents were apparently produced from her notes by Dan Anderson.

Her notes brought to trial differed significantly from those reports. She testified that she signed whatever changes the parents put in front of her. [ 31 ] Comments made by the supervisors have been the source of contention and questioning between the parents. Several of the supervisors lacked sufficient training or experience in supervision, became involved somewhat in the dispute and communicated with the parents outside of the supervision context. [ 32 ] Clearly, one cannot take everything a three- to- five-year-old says as the truth.

It is not clear if MK has been coached by her Mother or is influenced by things she may have seen when the parents were together (e.g., domestic violence). However, at minimum, this young girl is painfully aware that her parents do not get along and has certainly overheard comments by her Mother and maternal grandmother that are not complementary of the Father. [ 33 ] Dr.

Singh pointed out that MK did not display the fear or discomfort that would be expected if she really felt her Father was a bad man, and thus had a concern that she was repeating things she had heard or had been coached to say. [ 34 ] These statements demonstrate that MK is far from a carefree girl unaffected by her parents’ conflict, she is deeply enmeshed in it. In the summer of 2021, and at various times since then , MK resisted, verbally and occasionally with tears, leaving her Mother’s house for visits.

However, all supervisors reported that when she arrived at her Father’s house, she was happy, engaged and enjoyed her visits. When she had to leave her Father’s place, she often expressed the wish that she could stay. [ 35 ] What I take from her behaviour of resisting going to her Father’s, but being quite happy when she arrives there and then being sad to leave, is that MK is trying to convey to each parent what she thinks they wish to see and hear—resistance to see her Father while at her Mother’s house, and a wish to stay and see her Father while at his house.

This is a classic behaviour through which a young child

seeks to obtain the love and attention of each parent. Unfortunately, it only feeds into the fears of the Mother that the child does not want to see the Father, and the view of the Father that the child prefers to be with him. It adds fuel to an already volatile situation between the parents. 6.

Has the Father engaged in family violence as defined in section 2(1) of the Divorce Act ? [ 36 ] “Family violence”, as defined under section 2(1) of the Divorce Act , means: [A]ny conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes (

a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person; (

b) sexual abuse; (

c) threats to kill or cause bodily harm to any person; (

d) harassment, including stalking; (

e) the failure to provide the necessaries of life; (

f) psychological abuse; (

g) financial abuse; (

h) threats to kill or harm an animal or damage property; and (

i) the killing or harming of an animal or the damaging of property. [ 37 ] If family violence is found, the Divorce Act at section 16 (4) mandates that: In considering the impact of any family violence, the court shall take the following into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; an d (

h) any other relevant factor. [ 38 ] The Mother alleges that the family violence started after there was significant argument and issues in the relationship. She testified that, on January 4, 2019, the Father slapped her in the face and threw a hot glass of milk during an argument. After, she reports that he was apologetic and crying to say he was sorry. The Mother alleges that later, on November 19, the Father threatened her life, grabbed her with enough force to break her glasses and bruise her lip.

This was alleged to have happened in front of the child. [ 39 ] Both parents testified that, by late January 2021, they were arguing, primarily over the Father’s desire to have another child, and the Mother not wishing to do so. [ 40 ] The Mother testified that, in late January 2021, the Father pushed her, attempted to choke her, and kneed her in the buttocks during an argument.

She did not take any action, but on January 23, the police laid charges related to these earlier events. [ 41 ] On January 23, 2021, the Mother went to the bank after an argument and received a text from the Father saying “[MK] is alone at home. I am at home. Come and look after here (sic). It will be late for me to come.” She panicked, called the police and ambulance and when she arrived home the child and Father were not there. He went to rent a car, something he says was ordinary on the weekend, and took MK, along with a suitcase containing her clothes.

He explained that his intention was to visit another family, taking diapers and a change of clothes in luggage. The Mother took this to be a sign that he intended to kidnap the child, although he returned to

the house that evening, when the police were talking to the Mother, and where he was arrested. The parties separated but reconciled, and the Mother had the criminal charges withdrawn. [ 42 ] The Mother also testified that the Father threatened suicide, at one point putting a chord around his neck on August 22 or23 of 2020, in front of MK. She took a photo of this conduct, and the event was corroborated by Nasreen Ghiyas, the grandmother. The Father admits that there was a point where he wanted to end his life. He does not deny putting a chord around his neck and threatening to choke himself.

His evidence was that he “did not think MK was in the room at the time”. The Father’s behaviour was manipulative conduct, as there is no suggestion he intended to take his life at that point in time.

When he was in Ontario on a trip and it was confirmed that his wife had moved out, he went to the hospital as he was incredibly upset. [ 43 ] The Mother identified a note left in the bedroom after the Father was advised of the Mother’s wish to separate in the summer of 2020, which said: “I will make your life hell and not let you go easily.” The Father testified that this note was not written for the Mother, he initially gave no other explanation, but later suggested it was written for her brother who was living in the United States at the time. [ 44 ] The Mother has produced telephone records of continuous calls to her place of work at Costco, for example, phone records showing the husband tried to call the Mother 12 times over 2 minutes while she was at work, then texted her saying “[i]f you don’t answer I am calling Costco”. [ 45 ] On October 14, 2020, the Father came to the Mother’s place of work and tried to talk to her, interfering with her leaving by trying to get into her cab as she left work, until intercepted by a Manager, Ted Mayer.

The Father denied this action. Ted Mayer testified at trial that after opening the door for the Mother to leave work, he glanced at the security camera and saw a male trying to engage her and get into the cab. He went outside and escorted the Father out of the parking lot. The exit was a loading area, and not a usual area for the public to be. [ 46 ] The Father initiated a regulatory board complaint in March 2021against the Mother. She is an audiologist. His complaint was that she had been deceitful in her application for qualification here in Canada.

The contents of the complaint and decision of the board are in evidence. The board dismissed the complaint. The Father has appealed that decision. The fact that the Father would not just initiate a complaint like that, during this litigation, but then appeal the Board’s decision with the aim to destroy the Mother’s earning potential and make her life difficult, speaks volumes. He justifies that action on the grounds that he was upholding the truth.

It is another example of manipulative behaviour designed to destroy the Mother’s career. [ 47 ] The Father categorically denied all the allegations of violence or harassment towards the Mother. The most he acknowledged at trial was that he “gently moved her away” during an argument. He acknowledged the false attempts at suicide by strangulation by suggesting that he did not mean to convey a threat to kill himself but was very frustrated. He suggested that the telephone records of the calls to Costco were fabricated and did not happen. [ 48 ] I do not believe the Father’s denials.

His explanation of these events is simply not credible. The October 14, 2020 incident was observed by an independent third party who testified at trial and had no reason to misrepresent facts. This, in conjunction with Nasreen Ghiyas’s evidence that she lived in the house with the Mother and Father and often heard them arguing and using sharp words, leads me to find that the Father’s evidence is not reliable when he denies any violence toward the Mother. The Father had a habit to testify in a way that supported his position.

For example, he refused to acknowledge that the Mother was the primary caregiver of MK for any part of the period after her birth, and he gave evidence that “our personal life was fine” in the few months before the separation in an effort to explain why he never tried to overdose, but this directly contradicts the strangulation attempt and his explanation of all the stress at the time [ 49 ] I find from the evidence that, around the time of their separation, the couple were having disputes and the Father did hit the Mother and push her during an altercation. This was in the presence of the child.

I also accept the evidence of Nasreen Ghiyas that MK, as a young child from June 2020 to separation, was in the house when her parents were having arguments and MK at times sought comfort from her grandmother. [ 50 ] I agree with Dr. Singh that the Father’s behaviour toward the Mother can be described as coercive-controlling intimate partner violence. He was used to having control and has used conduct such as leaving the threatening note, the feigned suicide attempt, sharp words and some physical contact to try to regain that control by intimidation and manipulation.

These actions fall within the definition of family violence, specifically subsections (a), (c), (

d) and (

f) as set out above. [ 51 ] The Father reports taking some counselling before the charges in Ontario were dropped, however, he was reluctant to indicate whether the counselling was addressed toward anger management or other issues. At one point, he denied it was actually “counselling”. No other information about that was available to the Court. There has not been any violence since the separation. [ 52 ] To the extent any violence or discord was observed by the child, there is no evidence that she has been affected by it, either in fearing her Father or in her other behaviours.

The concern is that, if the Father does not take ownership of his conduct and modify it, there is a risk that he will exercise similar conduct towards MK, particularly if he is unable to control himself when angry or tries to manipulate the Mother and parenting situation. [ 53 ] When I look at this family violence in the context of factors set out in section 16(4) of the Divorce Act , I note: the violence occurred just before and around the time of separation; the patterns of coercive and controlling behaviour happened during the marriage and after the divorce proceedings (e.g., the complaint to the Audiology Board and the stalking behaviour at the Mother’s work); the child was likely exposed to the behaviour at home, but has not show any manifestation of physical, emotional or psychological harm; the violence has ended since separation, but the father exhibited some stalking behaviour after the separation date; and there does not appear to be a safety concern if the Father recognises his harmful behaviour and modifies it. [ 54 ] The ability of the Father to recognize and modify his harmful behaviour was raised with Dr.

Singh in cross-examination, and he admitted that in his report he did not specifically suggest counselling for the Father as he assumed that the Father would modify his

behaviour. However, he also acknowledged that the Father tended to deny this behaviour and see himself in a more positive light than the reality of the situation demonstrated. He admitted this is a long-standing pattern and reason for significant concern, as his behaviour is manipulative. It is one of the reasons he recommends a parenting coordinator with arbitration powers as a mechanism for accountability. He stated that if the Father is unable to stop his coercive behaviours, counseling would be in order. 7.

Has the Mother engaged in parental alienation? [ 55 ] The Father suggests that the Mother has alienated him from the child. He cites the initial separation and EPO applications as all part of a plan to gain advantage. He points to what he terms the “false” criminal charges; the Mother’s coaching of the child to make negative comments; the involvement of psychologist Patricia Letts without his knowledge; and the use of Covid regulations and the child’s health problems to deny him proper parenting of the child.

He raises the fact of supervised access as an illustration of the Mother’s unreasonableness. [ 56 ] The Mother sees her conduct as protective gatekeeping; she takes the position that safeguards are needed as a result of the family violence she experienced. She is concerned about coercive controlling behaviour that she has experienced, and that it will be used against MK. She asserts the Father holds problematic attitudes towards women. [ 57 ] In his assessment, Dr.

Singh found that the Mother had engaged in restrictive gatekeeping behaviour in trying to minimize the Father’s involvement with the child without justification. He felt that, due to comments the child had made, the Mother was likely denigrating the Father directly and otherwise undermining the child’s view of her Father.

He recognized that the Mother is struggling with the history of coercive controlling violence she experienced, but her response is to denigrate him and other’s perceptions of his parenting ability. [ 58 ] There is no question that the Mother has been restrictive in the access she has given to the Father. Supervised access to the child for two years is excessive in light of the supervision reports. Her conduct is a reaction to her view of the risk of family violence; her fear this will be exercised against a female child; and her very traditional, conservative upbringing in India.

The Mother has undergone a dramatic transition in a period of only a few years; including her move to Canada; becoming a Mother; and then suddenly having to move out and start from ground zero in terms of housing and parenting due to the violence and manipulation that blindsided her in her arranged marriage. [ 59 ] I find that the Mother has been critical of the Father and she was more involved than necessary with the supervisors.

For example, she contacted the supervisors and has been hypervigilant in reviewing the supervision records and following up on what she saw as concerns, including, for example, breaches of Covid protocols, the child changing clothes at the Father’s house, and the concern she had about possible sexual touching. [ 60 ] Having said that, the Mother did ease the translation requirement and many of the supervisors indicated that she was easy to deal with, agreed to changes in the timing and

schedule as needed, and did not interfere. It is also true that she did allow some additional hours for the celebration of Eid and MK’s birthday at the Father’s request. When a supervisor quit, she did reconsider her concerns after talking to Dan Anderson. This is not someone who is unreasonably obstinate, but she is hypervigilant to everything the child reports. [ 61 ] The Mother is not only hypervigilant about the visits, but she also voiced concerns about the child’s health and school performance. Justification for these concerns is not reflected in the school records.

Likewise, although the child had Covid and pneumonia, this is not a child with significant special health needs. [ 62 ] I find that the Mother has acted in a way that she feels is protective of her daughter, but actually has severely restricted the Father’s involvement in MK’s life, including insisting on supervised access for a two-year period. The Mother wishes to be assured the child is safe and is concerned about the Father’s history of coercive behaviour and violence. In cross-examination, the Mother was quick to acknowledge that MK needs her Father, and she wants them to have a good relationship.

It is clear that her focus is on the Father acknowledging the abuse and controlling behaviour, so they can both move on. The absolute guarantee that the Father will undergo the change that the Mother seems to be seeking is simply not possible in all the circumstances of this case. [ 63 ] It is surprising to me that, after 1,053 hours of supervised visits over a period of 2 years, the Mother has not been convinced by the reports to allow unsupervised visits and overnight visits.

This is concerning, as although the Mother is hypervigilant, this restriction appears excessive and exemplifies her inability to be realistic about the need for MK to have a normalized relationship with her Father and the parents to build trust. [ 64 ] As a result, some behaviours of the Mother have been overly restrictive on the Father’s contact with MK. MK has been exposed to alienating behaviour. 8.

What shall be the Mother and Father’s parenting schedule/plan with MK that is consistent with MK’s best interests? [ 65 ] The parent’s working circumstances are that the Mother works full-time in the pharmacy at Costco. This is a Monday to Friday full-time job with regular hours. She also is working at a part-time job for five hours on the weekend, which she described as temporary employment to fund the litigation expenses. [ 66 ] The Father is a Senior Technology Specialist at TELUS. He requested to work from home after MK was born, to be more

available for her. He has the option to work from home and can be flexible with respect to his hours. [ 67 ] The parents live close to each other in the same community. MK will be in full-time school in the fall. Both parents have back-up childcare when they work, as they each have a grandmother who lives with them. [ 68 ] The parenting plan should change. I do not see a reason that supervised parenting for the Father should continue.

MK should have the chance to be with her Father in an unsupervised context and have the benefit of his parenting as all the reports of the contact between the Father and MK are positive. [ 69 ] Due to the restricted nature of the Father’s access for the last two years, there should be a gradual increase in the parenting time he has with MK, including the introduction of overnight access. [ 70 ] Starting immediately, the Father shall have weekend visits from Saturday at 9:00 AM until Sunday at 7:00 PM, every second weekend until the end of June.

In addition, he will continue to have parenting on Tuesdays from 3:00 PM to 7:00 PM. [ 71 ] In July, the Father’s parenting time shall increase to every second weekend from Friday at 9:00 AM until Monday at 6:00 PM. In addition, he shall have every Wednesday from 12:00 PM to 7:00 PM with MK. [ 72 ] Starting in September 2023, when the child starts grade 1, the parents will start a 2-2-3 parenting plan, where the child is with one parent on Monday and Tuesday, with the other parent on Wednesday and Thursday, then Friday to Monday morning with the other. The

schedule then flips, so it is an alternating 2-2-3 schedule.

The transfers will be at school, to avoid contact between the parents. [ 73 ] A parent shall not volunteer or otherwise attend at the child’s school or extra-curricular activity during the other parent’s parenting time, without the written permission on Family Wizard for that parent to attend. [ 74 ] Each parent shall be informed of and respond to invitations for MK to attend play dates, birthday parties, and other social events that occur during that parent’s parenting time. [ 75 ] Starting in the summer of 2024, each parent shall have a two-week summer holiday period with MK.

The Mother will have first choice of the two-week period in odd years, to be exercised before April 1 each year, and communicated on Family Wizard. The Father shall have that same first choice in even years. [ 76 ] In odd numbered years, the child will spend the winter school break (in December/January) with the Mother, and in even- numbered years with the Father. [ 77 ] MK will spend the spring school break on even-numbered years with the Father, and in odd years with the Mother. [ 78 ] There will be no change in the 2-2-3

schedule to accommodate statutory holidays, or school professional days. [ 79 ] Mother’s day shall be spent with the Mother, and Father’s day with the Father. If this does not fall in regular parenting time, the timing for pick up and drop off shall be 9:00 AM and 7:00 PM, respectively. The child’s birthday and each parent’s birthday shall be celebrated during regular parenting time with each parent. [ 80 ] All transfers shall be done in conjunction with school during the school period.

If a transfer occurs outside of school days, it shall be done curbside, the party will drive to the sidewalk outside the house, the adult shall not get out of the car, the child shall go unaccompanied from the car to the house. Any possessions the child cannot carry shall be deposited on the sidewalk. The other party or their parents will not come out and get possessions until the child is in the house, and the other parent has driven away. [ 81 ] The parents shall equally share the Eid religious holiday. 9.

Whether the parents shall have joint major decision making for MK. [ 82 ] When parents do not communicate well, have a lack of trust and neither has insight into their harmful behaviours, the law generally favours one parent having the ability to make decisions. This is practical, as in high conflict matters, the aim is to reduce the contact between the parents as much as possible to reduce the potential for conflict. Although mutual decision-making is always preferable, there are some cases where it is just not possible.

Despite all the professional interventions and recommendations for this couple, they were unable to agree on a decision making mechanism. [ 83 ] The issue with one parent being the sole decision maker in a case of high conflict was identified by Dr. Singh, who fears that, if one parent has decision making powers, they may use it to wield power. The continued insistence of supervision by the Mother for the last two years is a dramatic illustration of her wish to restrict and control the Father’s parenting. [ 84 ] Dr.

Singh points out that there is no guarantee that the behaviours of the parents that are harmful to their ongoing parenting communications will stop. [ 85 ] Unfortunately, many communications between the parties go back to old hurts and insults, and there are major concerns about their ability to cooperate. [ 86 ] Dr. Singh and Dr. Tittemore have recommended a parenting coordinator with arbitration powers, due to the reality of the conflict between the parties.

This is to provide therapeutic intervention and attempt to have some assistance for the parents with their communication, as well as a third-party decision-maker if they are deadlocked. This is a therapeutic-oriented model which does not

engage the court process. The parties could not come to agreement on this. [ 87 ] One problem with this recommendation is that it requires the consent of both parties to allow the parenting coordinator to have arbitration powers. The Court of Appeal was clear in SSG v SKG , 2022, ABCA 379 at para 14 that, absent agreement between the parties or statutory power, a judge does not have jurisdiction to order spouses to submit their disputes to arbitration. The Divorce Act does not give the power to a trial judge to force parties to submit future parenting disputes to a parenting coordinator with arbitration powers.

The parties could not come to agreement on a parenting coordinator with arbitration powers. [ 88 ] A second problem with this recommendation is cost. In addition to the cost of a Practice Note 7 and Practice Note 8 report, the cost of a parenting coordinator to be involved in joint decision-making is a heavy burden on this family, in their respective financial positions.

One should not ignore that this model, although the most therapeutic option grounded in the hope for the long-term well-being of the family, can have a negative effect on both the parents and MK if they are constantly under financial pressure. [ 89 ] Based on the evidence I have heard of the profound lack of trust and also considering the personalities of these two parents, to give them joint decision-making powers at the current time, without change in their attitudes and considerable soul-searching by both of them, will only lead to continued conflict.

After two years of intense litigation, and a Practice Note 7 and Practice Note 8 report, the parents cannot agree on parenting, how decisions should be made, or even a framework for them to make decisions. The cross- examination of the Father amply demonstrated that he has been controlling and was dishonest in court about several matters. The Mother is unlikely to change in the short term, as she insists the Father must acknowledge his conduct.

With the Mother’s hypervigilance and the Father’s inability to recognize how he contributed to the breakup and some aspects of his behaviour that are manipulative and controlling, I find that joint decision-making at the current time is not in MK’s best interest, but rather a recipe for further conflict. [ 90 ] I cannot see that it is in MK’s interest to have the parents taking on joint decision-making at the same time that the parenting program is widening and undergoing change.

The religious decisions are made, there is an immediate need to deal with the school for grade 1, and the health decisions are minimal for this child. [ 91 ] I will leave any major decisions relating to the child with the Mother. This includes deciding the school MK is to attend, religious education, and any general health decisions. The Mother has been responsible in making these decisions to-date. Now that the Father’s parenting is set, she will not be able to be restrictive on his parenting time. [ 92 ] Each parent will make whatever minor, day-to-day decisions are necessary when the child is in their care.

If emergency health decisions arise while MK is in her Father’s care, he is to take any immediate action necessary and inform the Mother. [ 93 ] It is important that MK have someone outside the family who is able to observe her and assist her as necessary through her parent’s dispute. MK is therefore to continue to see her counsellor, the frequency to be decided by the counsellor. The parents will equally split the cost above any insured services. [ 94 ] As the parents will soon be on a

schedule that dictates that in any given two-week period, they have the child in their care for days on which extracurricular activities may come up, any extracurricular activity that is to occur on a basis that will impact both parents’ parenting time, must be agreed jointly between the parents. This will provide an opportunity for the parents to practice some communication to see if they can make joint decisions, and hopefully will assist in reducing any conflict over

section 7 expenses. [ 95 ] All communication between the parents is to be by Family Wizard. Any communication posted must be acknowledged by the parent within 24 hours as read, and reasonably answered within one week. Emergency communication of course should be by text. 10. Whether the Father shall have access to all MK’s records relation to medical, educational and extra-curricular activities. [ 96 ] The Father is entitled to be informed of medical, dental, and school-related information by the Mother, as well as any other health providers.

He is entitled to have access to any records of MK in relation to her medical, educational and extra-curricular activities. This request shall be made directly by him to the service provider. The duty of the Mother is only to inform. [ 97 ] It is the responsibility of the Father to contact the school and arrange for access to MK’s report cards and any notification of school-related activities such as parent-teacher interviews. [ 98 ] The Father is prohibited for five years from making a complaint to any governing board of a professional involved with the child, without leave of the Court.

I say this as he has the ability to negatively impact any therapeutic, educational or other decision the Mother makes for the child. To date he has made a complaint about the Mother’s credentials in an attempt to sabotage her career. He complained about the psychologist who saw MK, Ms. Letts, and there was evidence that he threatened to bring legal action against the Iman and the religious organization that granted a religious divorce to the wife. Complaints or threats of complaints by a parent can negatively effect a child’s care and access to professional help. 11.

Conclusion [ 99 ] The Mother shall have sole decision-making powers in relation to the health and welfare of MK, including decisions of her medical, dental, psychological treatment and her schooling. [ 100 ] The parenting

schedule shall change as set out in this decision, so that ultimately there will be an even split of residential care

between the parties. [ 101 ] Either party is entitled to bring an application to speak to costs if costs cannot be agreed between the parties. Trial heard on February 21, 22, 23 and 24, 2023 and May 1, 2023 Dated at the City of Calgary, Alberta this 12 th day of May, 2023. R.E. Nation J.C.K.B.A. Appearances: Udani Perera for the Plaintiff Satish K. Narang for the Respondent