Spady v Serfas, 2023 ABKB 734

Court of King’s Bench of Alberta Citation: Spady v Serfas, 2023 ABKB 734 Date: 20231221 Docket: 4803 161073 Registry: Edmonton Between: Elizabeth Maryanne Spady Plaintiff - and - Jeffrey Wesley Serfas Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice James T. Neilson _______________________________________________________ [ 1 ] This case is to determine the issues of custody, access and guardianship of the parties relating to the only child of their marriage, J. The litigation has a long history, dating back to 2012.

The relationship relating to the child has been highly contentious, involving many interventions by the Court, the police, and Child and Family Services. The trial involved 16 days of testimony with voluminous exhibits. A review of the litigation history is required to set the stage for the determinations that must be made by this Court. [ 2 ] The Plaintiff, who I will refer to as Maryanne, and the Defendant, who I will refer to as Jeffrey, were married on August 18, 2007, at the Village of Forestburg, in the Province of Alberta. There is one child of the marriage, J, who was born on April 19, 2011.

At the time, Jeffrey was a practicing veterinarian and they had first met when she was a veterinary medicine student at the University of

Saskatchewan. After graduation, Maryanne practiced at Jeffrey’s clinic until the birth of their child, when she primarily stayed at home to care for the child. [ 3 ] The parents separated on July 6, 2012, and an Emergency Protection Order was issued by the Court against Jeffrey on July 7, 2012. Since then, there have been numerous court applications relating to custody, access, and where directed, supervision during parenting time. [ 4 ] By Order dated June 16, 2017, by the Case Management Justice, R.P. Belzil, corollary relief was severed and a direction for desk divorce was ordered.

The Divorce Judgment was issued on August 15, 2017. [ 5 ] By Order dated October 24, 2018, Belzil, J. ordered that the parties shall

schedule a 10-day trial on the issues of custody and access of the child and child support, if necessary, with further directions on questioning and undertakings. [ 6 ] By Order granted on April 12, 2019, as amended by further order dated July 31, 2019, the issues of custody, access, guardianship and child support shall be scheduled for trial on the dates of January 6, 2020 to January 17, 2020.

A number of procedural steps were set out in the Order to take place in advance of the trial. [ 7 ] In the Order of December 13, 2019, the parties agreed that all parenting terms in past orders were set aside and replaced by this Consent Order. All terms in all past orders not respecting parenting shall remain in effect until further court order or written agreement of the parties. The Order provided that the parties shall have joint shared custody of the child on a

schedule of alternate weeks with the exchange on Wednesdays. Jeffrey’s next parenting week should commence on December 11, 2019, and the Plaintiff’s next parenting week shall commence on December 18, 2019, subject to the 2019 Christmas holiday schedule. Further provisions detailed the specifics regarding this parenting schedule. [ 8 ] Furthermore, the parties consented to an Order for Lynn Hutchinson to be appointed as a parenting coordinator.

The parents were to continue with counselling as directed and the child’s amicus , Kathleen Linton shall remain in place as counsel for the child for a three-month time period after the child’s counselling with Michael Stolte has commenced. [ 9 ] Pursuant to a Consent Parenting Order granted by Belzil, J. on December 13, 2019, the trial scheduled for January 6, 2020 to January 17, 2020 was adjourned sine die and the parties continued under Case Management to follow certain procedural steps to be taken in advance of the trial to be scheduled. [ 10 ] By Order pronounced on April 19, 2022, and filed June 23, 2022, the matter was directed to proceed to trial commencing May 29, 2023 to June 16, 2023, before the presiding Justice at the Edmonton Law Courts.

The trial proceeded as scheduled. [ 11 ] However, upon the Application being heard at Urgent Chambers on November 1, 2022, Justice E.F. Macklin ordered that the December 13, 2019 Consent Parenting Order is varied to state that the Plaintiff, Maryanne, shall have day-to-day care of the child and furthermore, that the Defendant, Jeffrey, shall have no contact, directly or indirectly, with the child until further court order. [ 12 ] On December 6, 2022, Jeffrey was charged on two Counts for alleged assaults on the child, J.

On March 29, 2023, Justice Andreassen found Jeffrey not guilty for the alleged assault under Count 3, worded as follow: Between the 1 st day of January 2022 and the 18 th day of April 2022, both dates inclusive, at or near Forestburg, Alberta, did, in committing an assault, choke, strangle or suffocate [J], contrary to

section 267 (

c) of the Criminal Code of Canada . [ 13 ] However, on April 26, 2023, Justice Andreassen found Jeffrey guilty under Count 1, namely; Between the 10 th day of September, 2022 and the 15 th day of October, 2022, both dates inclusive, at or near Forestburg, Alberta did unlawfully assault [J] contrary of

section 266 of the Criminal Code of Canada . [ 14 ] On May 24, 2023, Justice Andreassen adjudged that the passing of sentence on the offender be suspended, and that the offender be released on the following conditions, and specifically, the offender shall for the period of 18 months shall have no contact or communication in any manner with [J] accept as may be allowed by a parenting order made after today.

The Probation Order further provided that Jeffery shall attend, participate in and complete any assessment or program of guidance, counselling or treatment, the Probation Officer directs him to do, which could be a residential treatment plan, relating to: a. Anger Management b. Parenting c. Autism sensitivity training d. Any other one that the probation officer deems necessary.

If the Probation Officer directs him to attend any assessment, treatment or counselling program, he shall give proof of attendance. [ 15 ] Because of this changing landscape, the parties were obliged to alter their respective positions leading up to the commencement of this trial.

The main issue to be determined now is the ongoing parenting rights, guardianship and decision making by the respective parents, and more specifically, whether a reunification intervention as between Jeffrey and the child can be implemented, and if so, on what terms that are consistent with the best interest of the child, his personal safety and integrity. Review of the Case Management Proceedings and Resulting

Orders Leading to this Trial [ 16 ] Justice R.P. Belzil was designated Case Manager by Interim Consent Order dated March 28, 2014. The Order provided, on an interim basis, that Jeffrey shall have parenting time with the child for three overnights in week one and two overnights in week two, as well as other special days and vacation. The child shall reside in the care of Maryanne for all time periods not included in the Jeffrey’s parenting time.

The Order also provided that the child shall have no contact, direct or indirect, with Miranda Skoretz during Jeffrey’s parenting time, and that if she was present, or if there were any RCMP attendances during Jeffrey’s parenting time, then Jeffrey shall notify Maryanne forthwith. Miranda was co-habiting with Jeffrey, and later married him. Their relationship was tempestuous.

Finally, neither party shall criticize or make disparaging comments about the other party or the other parties’ extended family members, in the presence of the child. [ 17 ] Belzil, J. made a Consent Parenting Coordination Order dated September 5, 2014, appointing Dr. Greg Pickering as Parenting Coordinator under Family Law Practice Note 7 for a two-year term to assist the parties in deciding certain parenting issues, including developing a long-term parenting plan for the child.

A further Order dated September 5, 2014 directed that the Plaintiff and Defendant are entitled to disclosure of a copy of the records located at the RCMP Killam/Forestburg Detachment under specified investigational file numbers. [ 18 ] Dr. Joanne Seitz had completed a Practice Note Intervention Report. By Order of Belzil, J. dated November 19, 2014, a copy of that report shall be provided to the Wainwright district office of Alberta Child and Family Services. The Director, in turn, shall not release that Report except to Dr.

Richard Lucardie, legal counsel for the parties, the Director’s legal counsel or to a Provincial Court Judge hearing any applications. [ 19 ] On April 7, 2015, the Honorable Judge L.E. Nemirsky, at the Provincial Court of Alberta Wainwright Family Court, granted a Consent Order for Supervision, the Court finding that the child needs intervention and that mandatory supervision of the child is necessary to adequately protect the survival, security or development of the child. The parents were to attend and comply with the recommendations that came from the Parenting/Psychological Assessment completed by Dr.

Lucardie and will attend individual counselling. The child is not to be in the Jeffrey’s veterinarian clinic and exchanges are to take place without interference by the other parent. Jeffrey was ordered to continue to work with the in-home support worker two days out of each parenting visit subject to agreed upon arrangements otherwise. Jeffrey was ordered to ensure that J does not have any direct or indirect contact with Miranda Skoretz.

Finally, the case worker will attend the homes of Jeffrey and Maryanne, announced or unannounced, a minimum of one time each month. [ 20 ] Belzil, J. issued a Without Prejudice Interim Variation Order providing that Jeffrey’s parenting is varied for week one, each Thursday and Friday between 10:00 am and 2:00 pm, and in week two, each Saturday and Sunday from 10:00 am to 2:00 pm. Jeffrey’s parenting time shall be supervised by a mutually agreed upon supervisor or such supervisor as directed by the Court.

Belzil, J. further ordered that the application concerning Jeffrey’s contempt is adjourned, to be re-scheduled upon Jeffrey obtaining new counsel. [ 21 ] The contempt application proceeded to a hearing before Belzil, J. on October 31, 2016. The evidence was before the Court was that Jeffrey and Miranda had lied in affidavits, denying that the boy had accompanied them both on trips to Disneyland and Banff.

In the Interim Order, Belzil, J. directed that a Practice Note Parenting Time/Parenting Responsibilities Assessment shall be conducted by Carol Chandler, Registered Psychologist, to commence as soon as practicable. Jeffrey was declared in civil contempt of Court for breaching para 7 of the March 28, 2014 Interim Consent Order and for swearing an affidavit on November 6, 2015 and knowing that some of the contents therein were not true.

Jeffrey shall purge his contempt completely upon payment to Carol Chandler of 100% of the costs of the Assessment, including the initial retainer and further accounts, payable when due. Miranda was declared in civil contempt of court for filing an affidavit dated November 1, 2015, and knowing that some of the contents therein were not true. Miranda shall purge her contempt completely upon payment to Maryanne’s solicitors’ office costs in the sum of $5000 payable within 30 days of the date of that Order.

The Order furthermore provided that Jeffrey’s unsupervised parenting time pursuant to the March 28, 2014 Interim Consent Order shall be reinstated effective immediately.

All of the other provisions of that Order remained in effect except para 7 is vacated and replaced with “the child shall not be left alone in the care of Miranda Skoretz during the Defendant’s parenting time”; and para 11 shall be amended to read “neither party nor Miranda Skoretz shall consume alcohol or illegal drugs while the child is in their care.” [ 22 ] By Order dated September 12, 2017, Belzil, J. ordered that the terms of the October 31, 2016 Without Prejudice Interim Order shall remain in effect except that the child shall have no contact with Miranda Skoretz until further court order. [ 23 ] The parties entered into a Consent Parenting Order granted by Belzil, J. dated October 23, 2017.

A Practice Note 8 Report was completed by Carol Chandler and the parties have agreed to resolve the parenting issues as set out therein. The parties consented to the Order by their counsel, together with counsel for the child, Kathleen Linton. The Order provided that all parenting terms in past orders were set aside and replaced with this Consent Order. Otherwise, all previous terms not respecting parenting shall remain in effect. The Consent Order provided that the parties shall have joint shared custody on a

schedule of alternative weeks together with further provisions with relation to vacation and holidays. The child shall be registered to commence grade 1 at a Public School. Each party shall be at liberty to attend at the school and discuss the child’s IPP program and participate in all parent/teacher interviews.

Further provisions related to the child’s attendance at school and recreational activities. [ 24 ] Kathleen Linton had been appointed as amicus curiae on June 16, 2017 and her appointment was extended by further court orders. [ 25 ] On October 24, 2018, Belzil, J. directed that each parent and their respective spouses shall retain a psychologist to conduct and prepare a Parental Capacity Assessment Report which shall identify each respective parent and spouse’s cognitive abilities and deficiencies in order to accommodate the interests and needs of their child and assist with being more flexible in the co-parenting arrangement. [ 26 ] By Order dated July 12, 2019, Belzil, J. ordered that Eileen Ailon is appointed to complete the Assessment of the Child as per para 12 and 13 of the April 12, 2019 Amended Order (referred to previously in these Reasons).

[ 27 ] Belzil, J. ordered on August 29, 2019, that the child shall attend closed counselling with Michael Stolte, Registered Psychologist, on a confidential basis as soon as possible.

Neither party shall coach the child, discuss counselling with the child or interfere in any manner with the child’s counselling with Michael Stolte. [ 28 ] Further Orders directing that the matter proceed to trial dated April 12, 2019, December 13, 2019 and April 19, 2022 are referred to previously in these Reasons. [ 29 ] Belzil, J. granted a Consent Parenting Coordination Order, appointing Lynn Hutchinson as the Parenting Coordinator. [ 30 ] Jeffrey Keller was appointed amicus for the child pursuant to an Order dated April 20, 2022. His retainer was discontinued.

The Assessments of the Child [ 31 ] Early on in J’s life, Maryanne noticed a number of behavioural characteristics that caused her concern. Maryanne had noted that J had OCD-like tendencies with an extreme need to structure, routine, and order. He was observed to have poor eye contact and struggled to manage his emotions. He did not understand social boundaries and had problems falling asleep and sleeping through the night. He had very structured eating habits. Maryanne was concerned about J’s social functioning, lack of focus, decreased motor skills and concerns that he was easily upset and anxious.

She was concerned that J may be exhibiting symptoms of autism or some other behavioural disorder. Jeffrey denied that there was anything unusual about J’s behaviour, and he did not actually admit to J’s diagnosis until many years later. It was Maryanne who arranged for J to undergo assessment. [ 32 ] The child was assessed at the Preschool Assessment Service, Pediatric Outpatient Services at the Glenrose Rehabilitation Hospital on March 8 and 9, 2016. Sheila M.

Gallagher, Neurodevelopmental Nurse Practitioner arrived at a diagnosis of “Autism Spectrum Disorder accompanied by language impairments, requiring very substantial support (severe) for social communication and vary substantial support (severe) for restrictive repetitive behaviours. At risk for ADHD.” It was recommended that J would benefit from specialized preschool/school programming with continued input from speech-language and occupational therapy as part of the program.

At the time, he was attending playschool two afternoons a week and another playschool every second Thursday. [ 33 ] It was also recommended that the family may benefit from support from the Disability Services Specialized Services Program. Reassessment to update progress and assist with programing should be completed by the child’s intervention/early childhood/school program.

There should be a follow-up with the primary care providers/pediatrician for continued health maintenance, routine developmental surveillance, and ongoing emergency medical concerns. [ 34 ] The parents referred J in 2018 for a Neuropsychological Assessment by Dr. Don S. Massey, a Consulting and Clinical Psychologist. The child was tested on March 9 and 30 and May 7, 2018 and Dr. Massey submitted his report dated May 7, 2018. [ 35 ] Dr. Massey administered a battery of tests, interviewed the parents, and interviewed the child as part of his assessment. Dr. Massey also interviewed J’s teacher. [ 36 ] Dr.

Massey assessed that J’s cognitive abilities are in the high average range when compared to others his age (88 th percentile: mid average range for percentiles is 16-84). His verbal abilities where in the high average range while his nonverbal abilities where in the superior range. These results suggested that he had more than adequate cognitive ability to manage his program of study although the results where much lower than the previous ratings at the Glenrose, which placed him in the superior range.

J did not demonstrate deficits in his executive skills or memory abilities but showed mild impairment in his output skills and problems with his attention and concentration skills. His academic abilities where between the grade 2-5 range that is significantly above his grade 1 placement. [ 37 ] It was reported that J had problems with his ability to adjust to routines and inhibit impulses. He has hyperactivity and attention problems. He has restricted behaviours, poor social skills, poor emotional regulation, and atypical behaviours. Dr.

Massey concludes as follows: ...The current results indicate that [J] is within the Autistic Spectrum and more specifically shows symptoms of Asperger’s syndrome. There are no problems with cognition but the issues that he has with executive skills and social skills are consistent with this disorder. In addition, he presents with active symptoms of an Obsessive-Compulsive Disorder and mild symptoms of Attention Deficit Hyperactivity Disorder. All of these factors suggest that he requires modification and special education input as well as special needs funding.

He is not expected to have problems with academics but rather with social skills and output skills as suggested above. He will need to be academically challenged soon but his social skills development will also need to improve with appropriate intervention. [J] has unique knowledge in selected areas, typical of this disorder. However, he will need more role modeling and attention to develop his social skills, which are so important at this young age. His parents are working towards this goal and supports are currently in place. He will need to be monitored and reviewed in this regard. [ 38 ] Dr.

Massey recommended that the child continued to need special education intervention and funding under the Autistic Spectrum category. The child will need to be challenged academically in the near future, but this does not include accelerated placement as his social skills are still lagging behind. His teachers will need to adjust the curriculum to accommodate his needs in this respect. Dr.

Massey also recommended that J should be involved in social activities outside of the school if available, such as organized sports or individual sports, as well as summer camps that may be available for children with Autism Spectrum Disorders. He recommended a review by age nine to accurately measure progress in these areas. [ 39 ] As directed by the Order of Belzil, J dated May 8, 2019, a Court–Ordered Assessment Observation Report regarding the child was completed by Eileen Ailon, Registered Psychologist. Ms.

Ailon conducted interviews of each parent and their respective spouses, met with the child’s school team for grade 2 and grade 3, met and interviewed J independently of parent attendance and met with J at each parents’ residence. She also observed J in school and at his activities and family events, following which the report was provided.

[ 40 ] To address the concerns raised during the course of her Assessment, Ms. Ailon stated that the parents and stepparents agreed to take constructive steps to change their co-parenting in the following manner: 1. The father stated he will: * continue with his therapy, focusing on strategies to help him deal more effectively with his hypersensitivity to perceived slights, his defensiveness and to help him with anger management. • He was also encouraged to seek medical advice regarding his impulsivity and his anxiety. 2.

The father and Miranda will seek couples' counselling and will keep their arguments from [J]. 3. The mother will: • continue to see her therapist to work on her assertiveness and her ability to "stand up for herself' in disagreements with the father, rather than avoid and shut down communications. • She will work to share information more fully with Jeff. • The mother should consult with her physician regarding her chronic anxiety. 4. The mother and stepfather will continue with their joint counselling.

They should perhaps discuss how Maryanne can progress from viewing herself as needing [J's] protection in interactions with Jeff. 5. Specifically, for [J], the parents will: • Consult with [J’s] pediatrician regarding [J] going on a trial of medication to assist him with attention and concentration difficulties impacting his school program, social interactions and his activities. • [J] will begin his therapy and his therapist may benefit from a copy of this report, under the normal restrictions regarding confidentiality and sharing of information.

It would likely be most beneficial if the parents alternated taking J to his therapy. • The parents should assist [J] in learning yoga like stretching moves and in learning dance movement sequences. • They will endeavor to greet each other at transitions, in front of [J]. 6. The parents intend to be more child focused in their communications and will refrain from accusations, demeaning comments, blaming and referring to past failures. 7. They will communicate in a more positive manner regarding [J] and will let him know they are attempting to get along better, as he has requested. 8.

They will focus on being less competitive and combative and more positive in meetings with support staff. 9. Miranda and Maryanne are willing to work together with respect to school issues. 10. The parents will work with their Parenting Coordinator to resolve parenting issues and will develop protocols, such that he is able to monitor their progress on a regular basis. They should provide their PC with what is going well, in addition to what they are having difficulties resolving. 11. They will share weekly updates on [J], with each other, (and with this assessor up to the time of the settlement meeting).

They should share these with their PC if he feels this helpful. [ 41 ] Despite these positive directions as agreed by the parties concerned, the improvements in communication did not materialize. In particular, Jeffery failed to effectively address his hypersensitivity to perceived slights, his defensiveness and issues with anger management. The Report of Dr. Lloyd Flaro [ 42 ] In November 2021, Maryanne referred J for a Neuropsychological Assessment privately by Dr. Lloyd Flaro, as agreed upon by the father, Jeffery. Dr.

Flaro reported that J’s clinical presentation, neuropsychological tests scores, collateral sources of information (medical, pediatric, occupational, speech and language, neuropsychological, school and input from the parents) converged to confirm his diagnosis of Autism Spectrum Disorder and the high possibility of a milder form seen in either Asperger’s Syndrome or High Functioning Autism associated with right hemispheric dysfunction. It is also consistent with Developmental Coordination Disorder. [ 43 ] Dr.

Flaro noted that, unfortunately, the discrepancy between the parents’ reports and characterization of their son may cause problems with respect to services and supports that J will need now and into his adulthood. It will also impact how they parent him and what expectations they have of him developmentally and functionally. [ 44 ] In Dr. Flaro’s opinion, it will be important for both parents to understand the nature of his diagnosis of Neurodevelopmental Disorder, its implications, and consequences. They must understand that this disorder is permanent and will not disappear over time.

Methods can be employed to compensate for J’s interpersonal, social, and pragmatic communication skill deficits. He will need to also

learn strategies to improve his self-regulation; manage his low-frustration tolerance and increase his behaviour and cognitive flexibility. J will need to learn directly how people socially engage with each other and what behavioural actions are appropriate in such social context. It is in Dr. Flaro’s understanding that J is in therapy for this. [ 45 ] In Dr. Flaro’s view, both parents need to be on board about his diagnosis, its implications and lifetime consequences and work toward assisting J to develop functional and pragmatic social communication skills.

Believing that he is a normal functioning child when this is not the case will result in the parents or parent developing unrealistic expectations that are not achievable and in the long run, could do more harm than good. A High Conflict Relationship between the Parties [ 46 ] Maryanne gave testimony at length about her relationship with Jeffrey since 2012. It has been fraught with conflict. Maryanne gave her testimony in a credible and reasonable manner. It is clear to the Court that the source of conflict has been Jeffrey.

There is much evidence before the Court detailing his abusive and vulgar language directed at Maryanne, sometimes in the presence of J, and to her family members, the police, Child and Family Services practitioners, parenting coordinators, and lawyers. Jeffrey has assumed a confrontational attitude, blaming others for behaviour which really reflects his own shortcomings. Maryanne’s parents and brother testified that Maryanne has consistently been a concerned parent for her child’s wellbeing, particularly given his special needs.

They deny that they have been the source of conflict with Jeffrey, the abuse and aggression coming from the other direction. [ 47 ] Diane Fraser, Senior Child Intervention Practitioner with Alberta Children Services, testified as to the investigations and interventions by CFS in the period 2012-2015 and again, in 2019-2022. The Case Conference records detail, to an extraordinary degree, the anger and aggression directed at the Case Investigators, and toward Maryanne. He freely used gross insults towards them and expressed resentment against women generally.

He accused Maryanne as the one who was creating problems in the relationship with J, refusing to acknowledge his own responsibility in this regard. [ 48 ] In 2014, Ms. Fraser had referred Maryanne and Jeffery to Dr. Richard Lucardie for a psychological evaluation. With respect to Jeffery, the evaluation was to help clarify his clinical profile regarding his mental health and personality functioning; and parenting attitudes, beliefs, understanding, stress, and behaviour. [ 49 ] Dr.

Lucardie stated that risks for a child associated with child influences stem, in part, from the child’s vulnerability, response to the caretaker, behaviour, mental health and development, physical health and development. J’s vulnerability is defined by his young age, development, and limited communication skills, and a history of neglect when cared for by his father in his father’s clinic.

Risks for a child associated with family influences stem, in part, from domestic violence, ability to cope with stress, availability of social supports, living conditions and family identity and interactions. [ 50 ] Based on the results of his psychological evaluation, Dr. Lucardie stated that Jeffery’s clinical profile is characterized by the following: defensiveness, anxious conformity, overconcern with minor irrelevancies, low-empathic awareness, limited insight/self- awareness, trust issues, and low-treatment motivation.

His defenses appear to consist, in part, of denial, minimization, rationalization and projection, reducing and/or eliminating personal accountability. His self-perception/self-description may be more reflective of how he would like to be perceived rather than how he is. [ 51 ] Miranda Skoretz and her parents also testified at the trial. Miranda began a relationship with Jeffery in 2012, they were married in 2018, she gave birth to their only child in 2019, and separated from Jeffery in 2020. She is currently involved in family litigation against Jeffery.

As stated previously, she and Jeffery admitted to lying under oath in these proceedings and were cited in contempt. She said that her contact with J during periods of time when this was prohibited exceeded the number of times that were actually admitted before the Court. J was present when there would be violent arguments between Miranda and Jeffery, as well as periods of intoxication.

Since her separation from Jeffery, she has apologized to Maryanne and has admitted that many of her statements in court documents in support of Jeffery were untrue. [ 52 ] Jeffery called three witnesses as part of his case in this trial. Sarah Irene Tonowski is the library manager in Forestburg. She has known Jeffery since 2016 as a friend and as a veterinarian. She has seen Jeffery in the presence of J and of his daughter T. In her observation, he was very patient and noted no concerns with their relationship. She has noted more recently that Jeffery appeared to be under stress.

In cross examination, she was unaware of the specifics of any complaints of unprofessional conduct before the Alberta Veterinary Medical Association or of the particulars of the criminal complaints against Jeffery. [ 53 ] Kirsten Elizabeth Ness testified that Jeffery has been their farm’s veterinarian for over 20 years. She did see Jeffery and J interact at birthday parties and at the clinic after school. J always seemed to be a happy kid, and, in her observation, there was normal parent interaction. She worked at the clinic shortly before it closed.

Since then, she has seen J once or twice. [ 54 ] Wilcy Landry worked at the clinic from 2016 until its closure, as office manager. She occasionally saw J at the clinic. He normally seemed very happy, laughing, and joking and Jeffery showed affection for him. She has not seen J since the clinic closed. Jeffery had been under suspension by the AVMA for one month in 2016, six months in 2017, and then for one year in 2019. Ms.

Landry did note in an email exchange with Miranda Skoretz that Jeffery was a “pathological liar”. [ 55 ] In general, the testimony from the three witnesses gave very limited insight into the brief encounters observed between Jeffery and J, given the massive evidence from many other sources that the Court takes into account in these Reasons. [ 56 ] As stated in the Report from Ms.

Ailon, the school administration and teachers are reluctant to have to deal with the parents, and in particular, Jeffrey, concerning the child’s program, and would prefer to deal with Maryanne in order to provide progress reports that can be passed on to Jeffrey. [ 57 ] While the conflict generated by Jeffrey and directed toward Maryanne is undeniable, the issue before the Court is determining

what is in the best interests of the child. The conflict, if unresolved, can only have a negative effect on the child’s emotional development. This is particularly so given his emotional vulnerabilities as a child with autism. [ 58 ] It has been Maryanne, throughout, who had ensured that J is receiving the required medical and psychological assessment, treatment and support in the school programs and community. [ 59 ] Jeffrey has exhibited a lack of insight into his own personality characteristics that are the root cause of the conflicts between the parents.

There have been a series of court applications resulting in orders that permitted continuing parenting access to Jeffery, sometimes with limitations, and sometimes requiring supervision. In general, I find that Jeffery has struggled to maintain consistently healthy, positive parenting and co-operative co-parenting for the child. The child has been negatively impacted by some of his challenges, requiring significant interventions previously stipulated by court order and Child and Family Services.

The intent was to assist in protecting the child while improving the father’s parenting. [ 60 ] In the period leading up to the trial, Jeffery has deflected and explained away or minimized his own shortcomings in this regard. The challenge is whether he can assume responsibility for his problematic actions and behaviour. [ 61 ] In cross-examination, Jeffery agreed with these observations set out in the Report by Ms.

Ailon: These challenges, along with the seriousness of documented, concerning behaviours, could be said to be symptomatic of personality traits involving: A vulnerable self esteem, impulsivity, emotional regulation problems, difficulties in understanding the impact of his own actins on others and misattribution to others, of threating motivations. Such personality difficulties contribute significantly to challenges in cooperation as a positive co parent. However, mitigating these tendencies was his demonstrated capacity for empathy and compassion for [J], as well as for others.

This compassion seemed to be a critical motivation, for his striving to do better, as a parent and co-parent. Jeffery also expressed a willingness to take positive remedial steps, with respect to his parenting and co-parenting. However, he showed a naivete about how to go about the important changes that would be necessary, to affect more consistent, positive co parenting, on [J’s] behalf.

He acknowledged that his difficulties with impulsiveness, orientation towards immediate gratification, risk taking, and challenges with considering consequences, have contributed to a great deal of stress and turmoil in his life; which has impacted [J] in a negative manner. [ 62 ] The issue, then, is whether Jeffery is capable of following structured, professional help to learn alternative responses, to reduce if not eliminate conflict and permit the child to grow and thrive in a positive social and emotional family relationship.

Notwithstanding several interventions, Practice Note 8 Assessments and the implementation of parenting coordination, Jeffery has, to date, displayed an unwillingness or an inability to modify his own behaviour, assume responsibility for his negative actions and comply with court ordered directions.

The Criminal Convictions of Jeffery for Assault on the Child. [ 63 ] As detailed previously, the Alberta Court of Justice found Jeffery not guilty under Count 3, involving an accusation of “choking”, but found him guilty of assault under Count 1 of the information. [ 64 ] In evidence before the Court were the statements given by the child in the Zebra Centre concerning these two incidents. The child also testified at the criminal trial. The Court had decided that it was not proven beyond a reasonable doubt that Jeffery had put a choking hold on the child, it may have been a grasp of the child’s collar.

The trial judge emphasized that in this criminal case, the Court was not engaged in a credibility contest assessing each witness’s testimony. Rather, the issue was whether there is some exculpatory evidence that could, at least, raise a reasonable doubt as to the guilt of the Accused. This was the case here.

The Court was careful to note that J gave evidence in the Zebra interview and at trial and the child was clearly upset with the exchange with Jeffery that led to the charge under Count 3. [ 65 ] However, the Court was satisfied beyond a reasonable doubt that, in another incident, Jeffery had pulled the child’s hair and forced him backward over to the sink where he threatened to wash his mouth out with soap. He also spanked the child out of anger, not as discipline. [ 66 ] The child could not understand why his father disputed his evidence, and this, in itself, has caused some emotional harm to the child.

There was no indication in the court proceedings that the Court did not find the child’s evidence to be credible, rather, the finding of not guilty of Count 3 was made under the “beyond a reasonable doubt” standard of proof required of the Court. [ 67 ] Alex Neilson gave testimony as J’s Mental Health Support Worker. He is not an expert but reported to the Court details of his discussions with J as a therapeutic support worker. Before the criminal trial, he noted that J was under some stress. There had been challenges witnessing Jeffery and his girlfriend fighting. Police were involved and it was scary.

He was shown strategies such as deep beathing to help relieve the stress. In the lead up to the trial, he told Mr. Neilson that he loves his dad, but his dad had hurt him. After the acquittal on the choking allegation, J understood that there was not enough evidence for a conviction, but he was upset because he had told the truth. He was later relieved when the Court did agree with his testimony in the first Count but his was still bitter about the first result. He was shocked, scared and hurt because his dad had lied. He is not sure about seeing his dad moving forward.

He has had no communication with his mother about this. [ 68 ] Jeffery filed a Notice of Appeal from his conviction. However, at the conclusion of the trial, the Court was informed by his counsel that this appeal is being discontinued. Jeffery filed an Abandonment of Criminal Appeal in the Court of King’s Bench of Alberta on June 29, 2023. The Appeal had been seeking either a dismissal or a new trial. It was apparent that, if the criminal proceeding were to continue under the Appeal, then there could be, by definition, no contact between Jeffery and the child until the appeal was disposed of.

[ 69 ] At trial, Jeffery expressed his regret for the negative consequences of his behaviour in the past. He fervently wants to re- establish his relationship with the child, and he considers that, after all of the court proceedings, this is his last chance to do so. Whether successful reintegration is possible remains to be seen. The Court must give directions on a possible back path towards reintegration.

Section 16 of the Divorce Act , Best Interest of the Child [ 70 ] Section 16(1) of the Divorce Act provides 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. As set out in section 16(2), when considering the factors referred to in subsection (3), the Court shall give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing. [ 71 ] A number of the factors to be considered under section 16(3) are relevant and applicable to this case as follows: (

a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability. J is now 12 years of age. As detailed in the evidence before this Court, he has special needs relating to the diagnosis of Autism which will continue in his stage of development, and he would benefit from the need for stability. (

b) The nature and strength of the child’s relationship which the spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life. J has a strong relationship with his mother, whose parents are also supportive. His relationship with Jeffery is fraught, not only over time, but also with respect to the most recent convictions and the provisions that Jeffery must comply with under his probation order. (

c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse. The evidence is clear that Jeffery’s relationship with Maryanne is characterised by aggression and defensiveness. (

d) The history of care of the child. The child has for the most part been under the primary care of his mother who has made arrangements throughout for the assessment and treatment of the child given his special needs, and at school and in the community. (

e) The child’s views and preferences, giving due weight to the child’s age and maturity unless they cannot be ascertained. J did not testify at the trial and the Court cannot comment on the child’s current views other than to say that, if reunification is possible, it is imperative that there be a satisfactory risk assessment and safety assessment as commented below. … (

g) Any plans for the child’s care. Maryanne continues to provide for the child’s ongoing care, being the primary care giver. (

h) The ability and willingness of each person in respect to whom the Order would apply to care for and meet the needs of the child. There is no question that Maryanne is capable of caring for and meeting the needs of the child. The issue will remain whether Jeffery can demonstrate the ability and willingness in this regard. (

i) The ability and willingness of each person in respect in whom the Order would apply to communicate and cooperate, in particular with one another, on matters affecting the child. The evidence in this case is replete with the challenges facing Maryanne, and Jeffery’s continuing inability to communicate and cooperate with Maryanne on matters affecting the child. (

j) Any family violence and its impact, among other things: i. The 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. There has been family violence against the child, and the child has been present when violence has occurred between Jeffery and others. Whether Jeffery can establish the ability and willingness to care for and meet the needs of the child moving forward, will be dealt with further in these reasons. (

k) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and wellbeing of the child. In this case, the criminal conviction against Jeffery and the resulting probation order are all relevant to the safety, security and wellbeing of J.

A Reunification Process and Parental/Child Estrangement [ 72 ] At trial, the Court heard evidence from Dr. Perlita Torres and Lynn Hutchinson. Dr. Torres had completed a Parental Capacity Assessment Report pertaining to Maryanne and her current spouse. Lynn Hutchinson was appointed pursuant to a Consent Parenting Coordination Order granted by Belzil, J, on December 13, 2019. An objection was made to evidence from Ms. Hutchinson on her communications with the parents pursuant to that Court Order.

However, she did testify, without objection from the Defendant, as to the steps that a Court could follow in dealing with an issue of reunification intervention where there has been parental/child estrangement. [ 73 ] Having considered this evidence and submission from the parties, I consider that the following steps must be followed before direct contact between Jeffery and the child will be possible. First of all, Jeffery must establish to the satisfaction of the Court that he has been following bi-weekly counselling, including any counselling or other steps that have been directed by the Probation Officer.

This period will extend for a period of no less than 4 months from the date of issuance of these Reasons for Decision. If Jeffery is able to present evidence satisfactory to the Court in this regard, then he will undergo a Risk Assessment by an expert to be agreed by the parties, who will be provided with relevant records to assist the expert in making this Assessment.

The expert will also have the authority to communicate with any parties who may have knowledge that can help inform the expert in this Assessment. [ 74 ] The Risk Assessor will then provide a report to the Court detailing whether, importantly, Jeffery has reached the point of understanding concerning his previous detrimental behaviour and the ultimate need for the child’s safety and security if he is to be in his presence. [ 75 ] If upon the Court receiving a positive Risk Assessment from this expert, then, and only then, will the child undergo a Safety Assessment by a forensic expert to be agreed upon by the parties.

This expert would require access to the full records in relation to the parents and the child, as well as access to speak to persons involved as advisable. [ 76 ] If, and only if, the Court has received a satisfactory Safety Assessment concerning the child, at that point, a reintegration expert jointly retained by the parties and approved by the Court, will be provided with all material records, conduct interviews where appropriate, then propose to the Court a reintegration process to be followed, given a satisfactory Risk Assessment concerning Jeffery, and a satisfactory Safety Assessment concerning the child. [ 77 ] This process will take time, but again, the Court must take into account what is in the best interest of the child, his safety and security.

As the Court heard from Dr. Torres and Ms. Hutchinson, a failed reintegration could also have a negative effect on the child’s wellbeing. Conclusion [ 78 ] The Court therefore orders as follows: 1. Maryanne shall have sole decision-making concerning all matters pertaining to J; 2. Maryanne shall have primary residence of J; 3. Jeffery shall have no parenting time or contact with J except in accordance with the terms of this Order; 4. Jeffery may apply to the Court for possible reunification intervention or such other parenting time or contact with J provided confirmation of the following steps. 5.

Jeffery shall attend bi-weekly counselling with a registered psychologist for a minimum of 4 months from the date of these Reasons for Decision. Counselling shall address the areas of anger management, domestic violence, empathetic awareness, and coercive control. His psychologist shall be provided with all relevant Court Ordered Expert Reports and previous Court Orders and the criminal trial transcripts concerning J.

In addition, proof shall be provided from the probation officer that Jeffery has attended, participated in and completed any assessment or program of guidance, counselling or treatment at the Probation officer directs, relating to: (

i) Anger Management (ii) Parenting (iii) Autism sensitivity training (iv) Any other one that the Probation Officer deems necessary. 6. Upon satisfactory completion of these steps set out in para 5, Jeffery shall complete a forensic threat assessment by an agreed upon forensic psychologist with the provision that the forensic psychologist shall be provided with the documentation listed in para 5 and shall have full authority to communicate with Maryanne, Social Services, his psychologist and the RCMP. 7.

Upon a satisfactory forensic threat assessment submitted by the forensic psychologist to the Court, J will undergo a safety assessment by a registered psychologist to determine if the child can safely begin direct communication and contact with Jeffery, on the terms recommended by that psychologist. Such permitted contact with or without supervision will be set out in a Court Order at that time, to be revised in the future as circumstances may warrant. 8.

On an ongoing basis, Maryanne shall provide Jeffery with monthly updates concerning J’s achievements, school performance, mental health, health, and extracurricular activities.

9. On an ongoing basis, Maryanne shall advise Jeffery of significant decisions being made by her for J, including medical, education, specialized services, and extracurricular activities. She shall be the sole contact for J’s third-party professionals, including medical providers, education, mental health, extracurricular activities, and specialized services. 10. Notwithstanding the requirements for Jeffery to apply for reunification/contact/parenting as set out in para 4, Maryanne, at her sole discretion, may permit such contact that she deems to be in J’s best interest.

Costs [ 79 ] Given that this trial was necessitated by the parties’ inability to arrive at a satisfactory parenting regime involving Jeffery in the best interests of the child, I direct that costs of this trial will be payable by Jeffery to Maryanne. If the parties are unable to agree on costs, then written submissions not exceeding 10 pages may be made to the Court within 75 days of the date of these Reasons for Decision. [ 80 ] Counsel will prepare the formal judgment in accordance with these Reasons for Decision. Heard on the 29 th day of May to the 20 th day of June, 2023.

Dated at the City of Edmonton, Alberta this 21 st day of December, 2023. James T. Neilson J.C.K.B.A. Appearances: Maureen E. Murdoch for the Plaintiff Colin Hirano Long Family Law Group LLP for the Defendant