C.R.B. Applicant v. K.J.M., 2023 NBKB 224

2023 NBKB 224 Court File No.: FDF-512-2019 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: C.R.B. Applicant -and- K.J.M. Respondent Before: The Honourable Mister Justice Danys R.X. Delaquis Date of hearing: June 12, 13, 14, 15, 16, 19, 20, 2023 Date of Decision: December 15, 2023 Appearances: Jennifer Donovan and - for the Applicant Nushka Blais Shannon Doran, K.C. - for the Respondent

Summary of Proceeding: Petition for Divorce, Parenting Order and Child Support DECISION DELAQUIS, J., : INTRODUCTION [ 1 ] In this Divorce proceeding, the parties are embroiled in a high-conflict battle over decision-making responsibility and parenting time vis-à-vis the child of the marriage, C.B. (DOB: 2013), aged 10 (the child).

[ 2 ] The Petitioner (father) alleges that the Respondent (mother) is unable to place the child’s best interests above her own even to the extent of creating parental alienation, or “that the family is at a very high risk of parental alienation happening due to the actions and inactions of [the mother].” The father alleges that it has been a “nightmare from the start”. He believes that the mother has an unhealthy connection with the child.

The father believes he should make decisions and that shared parenting is in the child’s best interests. [ 3 ] The mother argues that she has been, and continues to be, the child’s primary caregiver and psychological parent. She says the child was very reluctant to go to visits and remains concerned that the child still does not wish to have extended visits with the father. In addition, the mother is concerned with the father’s work

schedule and his capacity to look after the child when under his responsibility. She also relies upon the child’s views and preferences expressed in the recent Voice of the Child Report. According to the mother, sole or final decision-making without any shared parenting is the best arrangement for the child. [ 4 ] Only a detailed review of the evidence related to communication and cooperation between the parties will demonstrate the level of conflict that exists between the parents. The father maintained his position of parental alienation with insufficient evidence.

However, the mother has been overprotective of the child and controlling, which also contributes to the conflict between them. There are no drug, alcohol or family violence issues present in this matter: they just cannot communicate. Although exchanges were initially difficult, they have vastly improved to the point where they are no longer an ongoing concern. In essence, the child is healthy, meeting educational milestones and doing reasonably well. [ 5 ] The parties also called evidence at trial in support of their joint request that the Court grant them a Divorce.

THE PLEADINGS AND PROCEDURAL HISTORY [ 6 ] The Petition for Divorce was filed on September 26, 2019, and an Amended Petition for Divorce on June 9, 2022. The mother filed an Amended Answer and Counter-Petition on July 11, 2022. At the time of trial in June 2023, many Orders had been issued to address a range of issues that have arisen since the original filing. The mother summarized the procedural history in her Pre-Trial Brief as follows: Motion #1 (heard October 3, 2019) - Father filed a Notice of Motion.

Motion #2 (heard November 29, 2019) -- Order filed December 4, 2019 - The father filed a motion for contempt and the parties agreed to withdraw it by consent. - The court addressed the father’s parenting time, and it was ordered that a counsellor from Family Enrichment and Counselling Services become involved to facilitate parenting time.

Motion #3 Father filed another motion on December 10, 2019 - heard December 20, 2019, January 10, 2020, and January 27, 2020) / Order filed January 10, 2020, Order filed January 15, 2020, Second Interim Order filed February 12, 2020, Order filed June 9, 2020 - The mother raised allegations of child abuse which resulted in an order that an investigation be conducted by the Minister of Social Development and a report be filed with the Court. - The father’s parenting time was ordered to be supervised and the matter was adjourned for a further hearing on January 10, 2020.

- A report was prepared and filed by social worker, Corey Withers of the Department of Social Development. - The supervision of the father’s parenting time was lifted by the Court at the hearing on January 10, 2020. - On January 27, 2020, the Court made an order for parenting time as follows: Alternate weekend basis working up to from after school Friday until 7:00 p.m. Sunday. On the week prior to his weekend parenting time, the father would have one mid-week parenting time from after school until 7:00 p.m.

On the week when the father does not have weekend parenting time, the father would have two mid-week parenting time periods from after school until 7:00 p.m. - It was ordered that the mother would have telephone parenting time with [the child] up to one half hour or if [the child] requires during his overnight visits. - It was ordered that the parties communicate using a permanent record of communication, either exchange of a journal, emails or using electronic communication programs that are available. - The transportation method was also ordered by the Court (Second Interim Order filed February 12, 2020). - A Voice of the Child was ordered on January 27, 2020.

A Psychological and Parenting Capacity Assessment was ordered by consent (Consent Order filed June 18, 2020) without the necessity of a Motion. Motion #4—Filed by the Father on March 31, 2020—Father requesting equal shared parenting time. Request denied. Mother’s father became involved in exchanges. Motion #5 Filed by Father filed January 15, 2021 (heard February 18, 2021). Order filed March 8, 2021: - A

schedule was ordered for the father’s mid-week parenting time on a four-week rotation. Week 1 – Tuesday and Thursday (after school until 7:00 p.m., Week 2 – Wednesday (after school until 7:00 p.m.) , Week 3 – Tuesday and Wednesday (after school until 7:00 p.m.) , Week 4 – Wednesday (after school until 7:00 p.m.). Motion #6 filed by the Father to request more parenting time (heard April 27, 2022). Consent Order filed June 7, 2022: - The Court ordered by consent that an updated Voice of the Child would be completed within 90 days of the date of trial (see Order

filed June 7, 2022). - There was no order made to vary the father’s parenting time and the matter was set down for trial. - An order was made for child support in the amount of $881.00 per month based on the father’s annual income of $102,076.33 commencing June 1, 2022, subject to retroactive calculations. - An order was made for the parties to exchange their Notice of Assessment annually commencing June 1, 2022, and each subsequent year and any changes necessary should be effective June 1 of that same year. - [The Father] wished to amend his pleadings to claim primary care of the child. [ 7 ] All matters under the Marital Property Act have been resolved in accordance with the Final Consent Order dated August 23, 2022.

The only exception is the division of the parties' business, in which they both have shares, which is the subject matter of separate Court proceedings. FACTS The Child and His Family [ 8 ] The parties were married on August 28, 2010, and separated almost nine years later, on August 4, 2019. However, they have been together a total of 17 years.

I will provide some background in respect of each of the parties’ extended families in this case because they have played a role in the history of care for the child, but also because some family members testified at trial. [ 9 ] The father works shifts which are subject to change, although his work

schedule appears to have recently been settled. The mother works full-time, or 35-40 hours per week, as a health-care professional. She is the majority shareholder of a local business. [ 10 ] The father’s parents are retired and reside in Fredericton. He believes his father “will do everything to help people around him” and that he is “very supportive, caring, trustful, open and calm”. He describes his mother as a “very nice, sweet and altruistic person” as well as “fair, comprehensive and dedicated to her children”. [Dr.

Robert Huot, Psychological and Parenting Capacity Assessment Report, Exhibit 1, p.47]. [ 11 ] The father has a very good relationship with his brother and sister-in-law, as well as their two children. They reside in Fredericton as well. [ 12 ] The father and his partner lived together in a rented dwelling from October 2019 to September 2020, when she moved into her own residence. His partner had custody of two young children who, according to the father, got along well with the child. [ 13 ] The mother has a good, positive relationship with her parents.

Her father is semi-retired and helps look after the family business. She described her father as being a “strict, serious, playful but rather cold man” and someone who “would do anything for his family”. The mother has a strong attachment to her mother, whom she describes as an “adorable, caring and sweet” person as well as “fair but at times too lenient”. She also believes that her mother’s “decisions were always well calculated”. The mother received support and encouragement from both her parents as a high-level athlete. [Dr.

Huot, Psychological and Parenting Capacity Assessment Report, Exhibit 1, p.53]. [ 14 ] The mother’s sister, her husband and two children live in Fredericton. Her brother and wife also live in Fredericton, with their two children. The mother feels that she can count on her family for support. The mother is not currently re-partnered.

[ 15 ] In his Parental Capacity Report, to be discussed in more detail below, Dr. Robert Huot provides the following background obtained from the parties, which helps contextualize their different perspectives: (…) [Father] believes that [Mother]’s difficulty to conceive is at the root of their separation. When [the Mother] became pregnant, she focussed on her child; [Father] felt she was reluctant to have him involved. He said his wife became argumentative and his reaction was to back off.

To take care of their son [Mother] stopped working at the business they operated. [Father] then invested in his work to avoid conflict. [Father] was also under the impression that [Mother] perceived that, like her own father, he had to concentrate on his work. He added that [Mother] was very controlling. [Mother] described that [Father] was investing a lot of time at work and that he was all over the place.

She added that he was rather impulsive but mainly anxious and obsessional. [Mother] believes that [Father] had a lot of pressure at work. [Exhibit 1, page 45] [ 16 ] When the parties separated, the father packed his stuff, got in his truck and left. The mother was shocked and very upset that the father had left the marriage/marital home but received support from her parents. At the time of separation, the father had to travel some distance back and forth from work. He tried to convince the mother to have as much parenting time with the child as possible.

He believed the mother was resisting his requests, controlling his parenting time, and unreasonably preventing the child from spending time with his parents. Several text messages and emails followed, many of which confirm the raw emotions that existed in the months following separation [Exhibit 16]. [ 17 ] The mother confirmed that the child sleeps with her, even though he has his own room, with the dog. The child has slept in the parents’ room since he was born. She described the child as being funny, athletic, affectionate, and loving, but also very stubborn.

He does not like to read, but enjoys camping, swimming, fishing and basketball. According to the mother, the child is a leader with his friends in the neighbourhood. [ 18 ] When the child was young and growing up, the mother says that the father was “rarely home” because he worked two jobs. Although she has worked as a medical professional for 14 years, she stayed home after the child was born, did all the child rearing and always considered herself to be the primary care giver. She took the child to doctor and dentist appointments, made the meals, did the housekeeping and the day-to-day tasks.

The mother testified that she prepared all the lunches, assisted the child with homework, and took him to play dates and birthday parties. [ 19 ] The father expressed concern during his testimony that the child was attending visits with him with his mother’s nightgown. The mother explained that she sent her nightgown with the child because someone suggested it, and the child was “having trouble”.

She never insisted that the child put it on and, in any event, he is now more than 10 years old and does not do this anymore. [ 20 ] The mother testified that the child and his father have a good, “but not very close bond”. The father was just not around that much. They “butted heads” quite a bit, but also had fun together. The mother nonetheless confirmed that the father is a “good dad” and loves the child. However, his attitude toward the mother hinders the child because “he reads into it”. The father has simply not provided the child with the same nurturing as her; his parenting style is different.

He is more “black and white”, authoritative and structured. She described his parenting style as “very objective and sterile”, whereas her approach is more “emotion-based”. She testified that the child does not like being disciplined. The mother tends to negotiate more with the child and involves him in discussions before removing his privileges, such as TV time and phone use. The mother imposes no restrictions on calls with the father. [ 21 ] The father testified that the child misbehaves and becomes angry when he hears “no”. This is especially true if he restricts the child’s phone time.

His evidence is that the child’s behavior changes when he is on his phone too much and after FaceTiming with his mother in the evenings. The father says he never speaks negatively about the mother to the child. [ 22 ] Although the father currently resides with his parents in Harvey, he plans to live with the child at his new residence which is

under construction. The proposed completion date is October 30, 2023. The Father is understandably excited to move into his new residence. The child will have his own bedroom. Some children he goes to school with reside in the same neighbourhood. Travel back and forth to the child’s school and for exchanges took 45-60 minutes whereas the father’s new residence is located much closer to the child’s school.

Travel time will therefore be significantly reduced. [ 23 ] The child’s paternal grandfather testified and confirmed that his son, and the child when in his care, reside with him and his wife in their 4-bedroom home. They have “lots of space”. He has a very good relationship with his son and the child. He says the child is good at playing cards, likes to laugh, dances around the house and loves sports. [ 24 ] The paternal grandfather further testified that the child’s behavior is 90 percent okay, until phone calls with his mother happen.

He personally observed the child’s behavior because he resides with him during the father’s parenting time. For example, he recounted times when they would be playing cards and the child’s phone rang; he would suddenly change his mind and not want to play cards anymore. He observed mood changes in the child after phone calls with his mother to the point where he would not co-operate. However, these mood changes did not last very long, would wear off, and the child would return to his “normal self”.

The child never asked the paternal grandfather to call his mom. [ 25 ] The paternal grandfather’s evidence is that the child is a real joy to be around; on weekends, the child goes fishing, watches “monster trucks”, loves to go biking and to the Clay Café and rides his scooter. He also plays with his cousins occasionally, goes to movies, paints, makes puzzles and plays video games. Overall, the child has very positive experiences. [ 26 ] The child’s maternal grandfather’s evidence about the child is similar to the evidence given by the paternal grandfather in many respects.

He testified that the child enjoys life, is happy most of the time, loves animals and “loves to spend time with his mother”. Exchanges [ 27 ] Exchanges have been a contentious issue between the parties. The father did not have any visits with the child from the time of separation in August 2019 until they were finally supposed to start, in the late fall of 2019.

The evidence is clear that many exchanges were difficult because the child was reluctant to attend. [ 28 ] In any event, organizing parenting time with the father shortly after separation in 2019 was difficult, according to the mother, because the child did not know what to expect. It was challenging getting the child situated as he continued to “resist” and rarely wanted to go despite efforts to change the exchange locations and to rely upon the grandparents for assistance. [ 29 ] In the fall of 2019, the mother would ask the child if he wanted to spend time with his father.

In other words, she would let the child decide, as her text message confirms: “He just says no when I ask”. [Exhibit 16, p.43]. [ 30 ] On October 29, 2019, a couple of months after separation, the parents sent text messages during an exchange which encapsulates the challenges they faced at that time, as well as their mindset. The child allegedly did not want to go to the visit with his father. The father insisted that the mother bring the child out of the home for the exchange.

The mother indicated in her text message that she tried “carrying him out and he wouldn’t come”, and suggested to the father that he come inside “if you have all the ideas”. The father’s response was: “I don’t trust you, I will not go in the house” [Exhibit 18, p.77].

[ 31 ] The mother testified that at the time of the February 12, 2020, Second Interim Order, exchanges were still hard, and they were “forced upon [the child]”. She believes that the “convoluted

schedule was hard for the child to grasp”. [ 32 ] The father’s first one-on-one or “alone” visit with the child was scheduled for after school on December 9, 2019. It did not go well. The incident at school that occurred on December 9, 2019, provides some good insight into how poor the parents’ relationship was approximately four months after separation. Several witnesses were called to give evidence about the incident that occurred that day at school as well as other incidents thereafter.

I will therefore review the evidence in some detail. [ 33 ] The father signed out the child from school and as he was walking out to his truck, the child was “negotiating” with him presumably because he did not want to go. The father had a snack for the child in the truck but as they approached, the mother allegedly sped up to the area in her vehicle. According to the father, she appeared distraught. The father testified that everything was “all good” until she showed up. [ 34 ] The mother testified that Ms. Howell was supposed to go to the school to supervise the exchange on December 9, 2019.

The child “struggled to go to school” that day, so Ms. Howell suggested cancelling the visit to reduce pressure on the child. The mother says she informed the father and then brought the child to school. The mother saw the note on the schoolteacher’s door and advised that the visit was not happening and left. The mother indicated to the child that there was no visit, went to the store, and then returned to the school. Emails had apparently been sent to the lawyers. When the mother arrived at school, the child was already outside.

By that time, the mother was confused because it was her understanding that the exchange was supposed to be supervised. She asked the father where the supervisor was, but then he started making calls on his phone. School employees then became involved. [ 35 ] On December 9, 2019, Ms. Chessie, an administrative assistant at the school, placed a “Student Pick Up Note” on the child’s teacher’s door. The mother dropped off the child at school a little later that day. Ms.

Chessie explains what happened after she went to place another sticker on the teacher’s door in her notes dated December 9, 2019: Later that morning I had to take another note and attach it to the teachers door for another student and was at this time that the teacher, Leanne Smith, mentioned to me that when [the child's] dad comes he might not be willing to go and that she might need assistance ie either someone take him to the office for pick up or someone watch her class so she can bring him down to the office for pick up. When dad arrived I paged down to the classroom and then a short while later I heard Mrs.

Porter in her office with a student but I couldn't understand what they were saying nor who the student was. Mrs. Porter left her office for a few minutes and I mentioned to [the father] that [the child] should be coming to the foyer to meet him. He then stated “he's in there” and pointed to Mrs. Porter's office (to me the dad looked very sad at that moment and appeared like he could tear up). He stepped out into the hall for a moment and then came back into the office area to wait. I stepped into Mrs.

Porter's office to see if [the child] was ok and he instantly backed away closer to the window at the far end of the office. This was a very awkward situation for me as I wanted to say to the dad feel “free to go in and see him” but I also didn't know what exactly was going on and the dad did not request to see him and seemed to be genuinely concerned and sad for his son. He apologized, saying “I'm sorry about this” and I said “you have nothing to be sorry about”. As to the best of my

knowledge he only showed up to the school to pick his son up, which to me is very normal for a parent to do. Mrs. Porter came back to the office area and brought [the child] out to meet his dad and they left the school building without any issues that I noticed. A few minutes later Sarah Wood came into the school to do her shift and when she signed in she mentioned that there was an issue going on between [the child's] mom and dad in the parking lot.

When I looked out the window all I was able to see was the father on his phone in the parking area and the mother's car parked in the driveway near the father's vehicle. [Emphasis in original, Exhibit 9] [ 36 ] Ms. Danielle Porter was involved in the child’s education at his Elementary School. She indicated that the child had some struggles with exchanges. The mother advised the child that he “could wait in the classroom if you don’t want to go with your dad”. The mother had several interactions with the child to the point where Ms. Porter had to occasionally help her get the child out of her vehicle. [ 37 ] Ms.

Porter helped to regulate the child, had to console him and assisted with buckling him up in his car seat. Ms. Porter had concerns for the child when he moved between households although it didn’t take long to settle him down. The child was more upset when the mother left because she was the parent who often dropped him off. Ms. Porter’s notes recounting what transpired on December 9, 2019, read as follows: At around 11:20, [the child] and his teacher showed up at my classroom door. His teacher told me that [the child] had something to say and that I should hear it.

I took [the child] into my office and he told me that his mother told him that if his father came to pick him up, he could stay in his classroom. I said to him “your mom doesn't want you to go with your dad”. He again told me that his mother told him he could stay in his classroom if his dad came to pick him up. I asked [the child] if he wanted to go with his dad. He told me quote “no”. When I asked why not, [the child] told me his dad was mean to him; however, he could not tell me how his dad was mean or what he did that was mean. I then went to see JM, an ESS member to get advice.

We both agreed that with no court order, I had no choice but to send [the child] with his dad, who at that point was waiting for him. I then went back to my office to tell [the child] that I had to send him with his dad. He and I went back to his classroom to get his things and I took him to meet his father at the front door. [The child] took his dad's hand and they walked together out of the building. It wasn't long after that SW our Guidance Counselor came in and said that [the mother] was (sic) came speeding up the driveway, got out of her car and stopped [the father].

She then proceeded to take [the child] and put him in her car. SW said she saw that the two parents exchanged words. She then left with [the child]. [The father] came back into the school and visibly upset. He spoke with SW and I. He told us that he was supposed to visit with his son and was to be supervised by social worker. When [the child] didn't show up at school, the visit was called off. According to [the father] once he found out that [the child] was brought in late, the social worker and his lawyer told him to go get his son.

That is when he came to the school at around 11:30. [The father] told us that [the mother] had called him to ask if he was going to call the school to call off the visit or should she. I then went to speak to [the child's] teacher. She told me that when [the mother] brought the child to school at around 11, she told the teacher in front of [the child] that the visit was off. [Exhibit 8] [ 38 ] Ms. Porter explained that because there is no custody agreement in place, both parents have the same rights and she made them aware of that policy as her notes dated December 10, 2019, confirm:

(…) She [the mother] also told me that all of his visits are to be supervised even though she didn't think [the child] was in any danger with his father. [The mother] told me that [the father] had phoned her to tell her that [the father] was going to the school that morning. Then she told me that the only reason she was returning to the school was to tell [the child] that the meeting was called off so he didn't need to worry about his father coming to take him.

This confused me because according to [the child's] teacher [the mother] had already informed her of this when she dropped him off that morning and [the child] had been right there beside her. She also said she was concerned about why [the father] would be trying to pick [the child] up at lunch when the visit was supposed to be after school. The mother said that [the child] hasn't seen his father in a month and a half. When I explained to her that without a court order to follow, [the father] and her have equal rights to their son and I cannot deny either of them access to him.

She had asked me to call her if he came up to pick up [the child]. I said I wasn't sure if that was something I would be doing as I did not want to get in the middle of their issues. I made a call to my supervisor who said that without a court ordered custody agreement, both parents have equal rights to the child and that [sic] do not need to call the mother in the event that the father picks up the child. [Emphasis mine][Exhibit 8] [ 39 ] Ms. Porter clarified the timeline of events that day during her oral testimony. A note was left on the teacher’s door; the child was dropped off.

The father came to pick him up, but the child was upset. The father came back in the school, and they left together. Ms. Porter was worried about the child’s emotional well-being. [ 40 ] Ms. Sarah Wood has been the school counselor since 2018. The child was struggling with change of routine and circumstances. The child spoke to Ms. Wood about his interests but did not talk about the separation. Ms. Wood’s goal was to establish a rapport with the child so that he could open up to her about his feelings, but that did not happen. However, the child never informed Ms. Wood that he felt unsafe at school. [ 41 ] Ms.

Wood stated that on December 9, 2019, the mother parked her vehicle in front of the father’s truck which she did not interpret to be unusual. She did not perceive the child’s demeanor because his back was toward her at that time, and she could not see his face. Ms. Wood did however observe the father’s frustration and he did speak to her about what happened. Ms. Wood said that based on what she was able to observe, she did not have any concerns about either parent that day. She stated that the father seemed very humble and caring. Ms.

Wood just wanted to do what was best for the child. [ 42 ] After the December 9, 2019, incident, the mother alleged abuse and denied access/parenting time to the father. In essence, the allegation was that the father hurt the child when he put him in the car seat.

However, the Minister of Social Development (MSD) concluded that the allegation was unsubstantiated after carrying out an investigation. [ 43 ] Correspondence dated January 7, 2020, from Corey Withers, a social worker, confirms his findings after investigating the December 9, 2019, incident at school: When interviewing [the child], he presented as in need of approval from his mother, prior to speaking with myself. [The child] also told me that his parents still lived together, he was unable to provide a clear answer regarding what he wanted to see happen. [The child] talked positively about interactions with both parents.

During my involvement with the family, both parents were informed there were no child protection concerns that required [the child's] access to be supervised by the Department. They were both advised to follow the court's current direction on access. [The mother] verbalized her intent to cooperate and allow [the child] to have access with [the father]. She did not follow through on this, and

[the child] did not have access with his father during the course of this investigation, despite four attempts made by [the father] to see his son since December 23, 2019. [Emphasis mine] [ 44 ] Not surprisingly, the father filed a Motion to address the access issue. In January 2020, an access

schedule was put into place by the Court. The pickup/drop off point was school or at the Mother’s sister and bother-in-law’s residence. This arrangement worked “perfectly fine” according to the father. He would pick up the child and do normal activities with him such as homework and playing outside during the 2:15 p.m. (after school) to 7:00 p.m. parenting time schedule. However, the father wanted more parenting time. [ 45 ] The mother stated by the time the Court issued an Interim Order on January 10, 2020, the child was “kicking and screaming” at exchanges.

I note that Clause 5 of that Interim Order provided that the mother was responsible for dropping off the child “and shall not be present when [the father] picks up [the child].” [ 46 ] Initially, the child would not come to the father or get out of the vehicle at exchanges. The father did not understand why everything was good when he picked up the child from school but had issues when he dropped him off or picked him up when the mother was present. The child’s behaviour was “off” until he was alone with the father.

According to the father, there was no “triggering incident” to explain the child’s conduct, other than the mother discouraging the child from seeing him, or even alienating the child from him. This situation was hurtful to the father, who believed that the mother was responsible for making the child feel and act in this manner. He wanted the child to see a counsellor/psychologist. [ 47 ] E.S., the father’s friend and co-worker, testified about his observations during certain exchanges. One of those exchanges was in the afternoon of March 17, 2020, at the Exhibition Grounds.

E.S. was in the father’s truck with him. The mother arrived with the child, but he would not come to the father’s truck. [ 48 ] E.S. observed that the mother was not helping whatsoever with the exchange; she was just watching. Her father was in his own vehicle situated about 30 feet away holding up his cell phone. During the exchange, the child reached out and the mother held his hand and returned to her. The father went to her vehicle, but the mother put up her hand and said, “five more minutes”. The father went to the driver’s side of her vehicle and the child jumped into the other seat to avoid him.

The mother did nothing to help get the child out of her vehicle; he was kicking and screaming. The father called his lawyer. E.S. testified that the mother had a grin on her face throughout the whole ordeal. [ 49 ] The father was finally able to buckle up the child and they drove off. E.S. observed that the child changed very quickly and was “totally different” when they left: he was excited to see his grandparents and invited E.S. to see his bedroom when they arrived. [ 50 ] The mother testified about the exchange that took place on March 17, 2020. She confirmed that E.S. was present.

She parked her vehicle and was trying to get the child ready for the exchange. The father came over to her vehicle. She decided that it might be harder for the child if she stayed in her vehicle, so she exited. The child exited her vehicle but ran back to her saying “no mommy, no mommy” and was crying. Eventually the child went with his father. The mother allegedly encouraged the child “to have fun” with the father, that “you just have to go”, “the longer you sit, the worse it is”, and “rip the band aid off”.

The mother completely denies “smiling and enjoying” the exchange, contrary to E.S.’s testimony. [ 51 ] The maternal grandfather recalls the exchange at the Exhibition Grounds when E.S. was present. He pulled in and parked in a place where he could observe. He recalls the father sitting in his truck and when the mother finally removed the child from her vehicle, he ran back into her arms. Contrary to E.S.’s testimony, he says the mother was upset and had tears in her eyes, so he told her to leave.

He then observed E.S. in the passenger side of the father’s truck. [ 52 ] The paternal grandfather had occasion to observe many exchanges. He testified that the exchanges are much better now. In 2019, the exchanges were a “real struggle”; the child did not want to leave his mother and sometimes would not want to leave her home or get out of her vehicle.

However, once the child was settled in the father’s vehicle, it was “like a switch”, and he was normal again. [ 53 ] The child’s maternal grandfather confirmed that exchanges after separation were difficult; he became involved after Justice Noble asked if he could be an observer and a familiar face for the child during these difficult times. He recalled one incident at the mall in November 2019 when the father came over to the table where he was sitting with the child.

The mother was walking toward them, but the maternal grandfather stopped her and said that she was not supposed to be there according to the Order. The child tried to leave the mall.

[ 54 ] The exchanges with some family members were difficult because often they were busy leading their own lives. Then Covid arrived. People were scared and uncertain, but her father helped with the exchanges which, according to the mother, “eventually did get better”. [ 55 ] Over the summer of 2020, the exchanges were taking place at the maternal grandfather’s residence and were easier. He explained that the child was often not happy walking down his driveway and that it was “tough to watch”. The mother also says the exchanges were hard to watch.

She often went back to see her parents crying and worried about the lasting effects on the child. [ 56 ] E.S. also observed challenges during the exchanges on March 24 and 25 th , 2021. On March 24, 2021, at the father’s parents’ home, the child avoided him again. The mother’s father was present again but in his own vehicle. On March 25, 2021, the child showed similar reluctance. E.S. testified that the mother came over to kiss and hug the child; this created a “musical chairs” situation with the child changing seats again.

According to E.S. the child was quite upset. [ 57 ] E.S. has a child, who spends time with the child as well. They go on fishing trips together. He says that the child caught his first salmon with them in the Miramichi. He describes his backyard as a “kids paradise”. E.S. further testified that the child is not as shy as before and says he is a “different kid” now.

E.S. confirmed in cross-examination that the exchanges are better now especially when they take place at the maternal grandfather’s house. [ 58 ] The maternal grandfather testified that in the last few years, the exchanges “improved tremendously” and that the child “goes willingly now”. [ 59 ] The father agrees that the exchanges “are fine” now and certainly better than back in 2019-2021. However, during the March break in 2023, the father indicated that the child would not come out to be picked up at first. The father says that occurred because the mother said he was not available even though he was.

He drove to Harvey anyway, and eventually the child agreed to go at about 7:00- 8:00 p.m. The father testified that they had a great March Break together; they went to Saint John, attended a hockey game, went to the trampoline park, and did some shopping. [ 60 ] Despite the foregoing, the mother’s evidence is that initially, the exchanges were “really bad”, but improved over time. In fact, she testified that the exchanges have “settled down”, have been “normal” for approximately the past two years and that they “were not a huge issue at this point”.

When the child now returns to the mother after a weekend visit with his father, he is happy, leaves the vehicle on his own, brings his bag in and they exchange hugs and kisses. Dr. Stacey McKay’s Involvement [ 61 ] Dr. McKay has been a clinical psychologist since 2007. Her clinical practice is focused on children/adolescents and parenting. In this case, she was asked to become involved to assist the child in his adaptation to his parents’ separation. Dr. McKay had 10 sessions in total with the child.

She also offered parenting support and testified that both parents were receptive to receiving some assistance. [ 62 ] Dr. McKay became involved by providing child therapy in September 2020. She described the child as having a typical reaction to his parents getting divorced: angry because it’s unfair, anxious, worried and aware of “compliance issues”. [ 63 ] Exhibit 17 contains numerous emails exchanged between the parties and Dr. McKay. The mother had not seen the emails the father sent to Dr. McKay directly until Trial and described them as shocking and sad.

In any event, I will not refer to all these emails in detail. I have read and considered all of them. They are important to the extent that they relate to the child’s needs, but also how the parents interacted to ensure that they were met.

[ 64 ] The father found the task of convincing the mother to allow the child to see Dr. McKay frustrating. There were delays and reluctant responses, coupled with the involvement of Jack Simpson, an employee of the Department of Social Development, who spoke to Dr. McKay and was copied on several emails between the parties. [ 65 ] Dr. McKay’s initial observations were that child had “stuffed emotions” and deferred to the mother first. He was reluctant to answer questions and even sulky on occasion.

The tension between the parents contributed to the child regressing; he sought to avoid situations and elicited a “flight” response. In other instances when she asked the child about his father, the child showed more of a “fight” response. On October 21, 2020, the father informed Dr. McKay of some of his concerns in an email: Other concerns of mine are when I drop [the child] off at his mother's, [the mother's] celebrations are over the top. It's like she hasn't seen him in over a week. She sometimes jumps up and down and hoops and hollers when he walks in the door. This has been this way since last January.

On some of the days when I drop him off where there is 6 days from when I see him again, she has her hands out with 6 fingers out and jumps for joy when he comes in. Tonight, she had a party planned for him when he got home (at 7pm) for a TV show character. He was already tired today when he was here. A couple of things have happened over the past few days with regard to Halloween access and the parental assessment being back on and I hope [the child] hasn’t been negatively affected by this. [Exhibit 17, p.205] [ 66 ] The father felt compelled to send this email to Dr.

McKay on November 4, 2020: I have tried to get [the child] help for over a year now and [the mother] has refused every step of the way. [The mother] does not want [the child] to get help and I believe she is upset with how things are going and is trying to sabotage him seeing you. It took a lot of work for me to finally get him in to see you and I still think she is mad about this. She may have been challenged or heard something she didn’t want to hear and communicated this with [the child].

I know [the mother] was all about fit for [the child] seeing a therapist/doctor and I believe she is going to try and say it's not working. [Exhibit 17, p.207] [ 67 ] On a more positive note, the father communicated with Dr. McKay on November 16, 2020, to inform her he was very pleased with some of the strategies that she has recommended which “worked very good this weekend”. The strategies referred to by the father pertained to calming the child down and phone access especially. The father sent an email to Dr. McKay on November 29, 2020, referring again to positive steps in terms of the child’s behavior.

However, he also mentioned in that same email concerns about the mother “talking bad about me in front of [the child]” during phone calls and requested advice from Dr. McKay on how to handle those situations.

[ 68 ] In December 2020, the parties could not agree on what day the child would next go to see Dr. McKay. On December 11, 2020, Dr. McKay pointedly informed the parents as follows: Ok - so the two of you just repeated what you sent separately to me in emails and I still need to know which day [the child] is coming next week so I can

schedule other clients accordingly. The two of you need to decide - keep to the regular

schedule of visits (which would mean Tuesday) or keep to the

schedule of taking turns (which would mean Wednesday). [Emphasis mine; Exhibit 17, p.225] [ 69 ] The next day, on December 12, 2020, the father expressed his frustration to Dr. McKay about the mother’s refusal to adapt parenting time to recent changes to his work schedule: I am sorry. [The mother] and I will never agree. She will not agree to my new work

schedule and the access

schedule I proposed to her. I worked with her and adjusted the

schedule to accommodate her and she will not budge. She is trying to get me to take [the child] January 26th as this the day, she wants me to have him. I proposed I have him on January 27 and 28. What she is trying to do is

schedule my access with [the child] as much as possible after I work at [place of employment] as I sometimes get forced to work or I have to stay if there is an incident. As much as possible, I try to avoid this. This is not always avoidable, which is fine, but there is no valid reason why she can’t work with this. The

schedule I proposed works for both of us and most importantly [the child]. I am very sorry for this. No matter what I say she will disagree. We will have to deal with this with our lawyers unfortunately. I am having difficulties dealing with [the mother]. I don’t know what to suggest. I tried to suggest [the mother] and I get help dealing with each other but she didn’t seem interested. Everything with her is a fight and she negatively affects me. That’s one of the reasons I left. [Exhibit 17, p.221] [ 70 ] In February 2021, the issue of the child attending gymnastics was canvassed with Dr. McKay.

The father had informed Dr. McKay that “[the child] didn’t want me to take him to gymnastics this past weekend (his weekend with me)”. Dr. McKay’s email response on February 9, 2021, really highlights some of the ongoing miscommunication between the parents, so I will refer to it fully: I would just leave gymnastics for now.

Got an e-mail from [the mother] indicating that [the child] came home upset on Sunday about it because “you kept asking if he wanted to go and [the child] thought that you were trying to make him say that he didn’t want to go gymnastics -which he does but only on mom’s weekend because that was the arrangement that was previously made”. He – or mom – misinterpreted your intentions…. Did you discuss this change (i.e., each of you attending gymnastics on each other’s weekend) with [the mother] and the expectations before bringing it up with [the child] as I suggested?

Seems like she knew nothing about it and is merely going on what [the child] said – which leaves a whole lot of room for miscommunication/misinterpretation. You might want to follow up with her re: e-mail to clarify. Like we discussed, we need to remove [the child] from being in the middle – he is not old enough to be a reliable messenger – not that any child no matter what age should be responsible for parent to parent communication. Looking forward to seeing him – hopefully sooner rather than later :o)!! [Exhibit 17, p.248] [ 71 ] By March 2021, miscommunication about exchanges continued to arise.

The father suggested to Dr. McKay that the mother had not communicated to him the fact her parents had moved, and that “[the mother] assumed [the child] had told me.” [Exhibit 17, p.255]

[ 72 ] By March 19, 2021, there was still no agreement on a

schedule for the child to resume therapy with Dr. McKay as she confirmed in her email. That email references the mother’s refusal to commit to one Thursday per month “due to volunteering and/or [the child] possibly doing a make-up gymnastics class (…)”. Dr. McKay explained to the parents that: That may be what the two of you choose to do so we can resume [the child's] therapy but it is not ideal.

First, parents alternating bringing him to sessions allows [the child] to see that both parents are involved, working together, supportive, and think therapy is a positive/helpful thing to do (otherwise he will be less engaged). It also provides the opportunity for me to help [the child] talk with each of you and/or negotiate things that are happening in each house, address issues, and deal with miscommunications/misunderstanding.

I encourage parents alternating attendance to increase communication between myself and the two of you re: what's going on with [the child], parenting and co/parenting but that is not always possible so then what I suggest is that we arrange a separate session (either in person, virtually, phone) to meet with the non-attending parent to find out what is going on from their perspective, keep them informed re: sessions, and address any parenting/co-parenting issues. [ 73 ] The impasse remained to the point that Dr.

McKay attempted to clarify her position and stated the next day, on March 22, 2021, that: I am being as accommodating and flexible as possible but I cannot displace my other clients and do alternating days (Tuesdays/Wednesdays). I'm also fully booked on Mondays and Fridays. So the two of you need to decide how you want to proceed. You're right [the mother], finding another therapist who might be better able to accommodate your schedules is always an option. I just want to make sure [the child] is getting the support he needs.

Please get back to me quickly with what you decide and we will go from there. [ 74 ] The father continued to send updates of his time with the child to Dr. McKay with reference to both positive and more difficult moments. By August 11, 2021, Dr. McKay confirmed that perhaps no further appointments were necessary at that time: Therapy is meant to be positive and supportive not negative and a power struggle.

Rapport has been difficult with [the child] since his misunderstanding regarding my role in the process (i.e., therapist not custody assessment) and more recently, his suspicions about me “taking sides” when the only side I am on is his (i.e., that I talk to and get feedback about what is happening between sessions from both of his parents - not just dad). I trust that you sorted that out with him [the mother] after our phone conversation and that he now understands that I get information from both of you - that it is not one sided??

I certainly do not want to add to any “negativity” or resistance by making him come to another appointment so if he is doing well and there are no major concerns, I am OK with cancelling the next appointment so we don't get into a power struggle about attending sessions. I would just ask that you tell him that I have heard how well everything is going from both parents so we all decided that a session wasn't needed. [Emphasis in original; italics and bold mine][Exhibit 17, p.313] [ 75 ] On August 13, 2021, Dr.

McKay confirmed in an email to the parents “that’s great to hear [the child] is doing well and no need for the session” [Exhibit 17, p.317]. [ 76 ] In cross-examination, Dr. McKay stated that in June 2021, both parents agreed that the child was doing well. In August- September 2021, both parents also agreed that the child was doing well, and further sessions were not necessary. In any event, Dr. McKay advised the parents to re-connect with her if necessary. It was not necessary because the child has not seen Dr. McKay since approximately August 2021. In addition, the child did not express to Dr.

McKay if he wanted more or less time with any parent. [ 77 ] By August 22, 2022, the father was trying to get the child to see Dr. McKay “for a check in” based on his perception “of the pressure [the child] is under”. Dr. McKay advised the father that both he and the mother would need to agree to the child coming back for an appointment.

[ 78 ] The mother’s position was that the child was doing well and advised on September 8, 2022 that he had a “seamless transition from a fun summer to Grade 4”. The mother alleged that the father had attitude issues toward her and that his accusations of influence and manipulation were tiresome and invalid. The father followed up with allegations that the mother’s gaslighting was getting tiresome and that her conduct was “appalling”. The father advised Dr.

McKay that he did not know what else to do and contacted Social Development. [ 79 ] However, the “check-in” session that the father requested earlier was not necessary as his concerns settled down. The father’s November 15, 2022, email to Dr. McKay provides the following positive update: I just wanted to give you an update. After talking to [the child] about the homework and agreeing to let him do it with his mother, things have been perfect. The last two weekends I had with [the child] were amazing and his behavior has been great. It was like the switch flipped the other way.

I just wanted to pass this along to you. [Exhibit 17, p.330] Parental Capacity Assessment [ 80 ] Dr. Huot is a sole practitioner, clinical psychologist. He obtained a Doctorate in psychology and has been a member in good standing of the College of Psychologists of New Brunswick since 1981. According to his Resume, Dr. Huot has testified as an expert witness in more 300 cases in the Court of King’s Bench of New Brunswick (Family Division) and in the province of Quebec. Dr. Huot was qualified as an expert in psychology, with expertise in conducting Parenting Capacity Assessments. [ 81 ] Dr.

Huot conducted telephone interviews with the following individuals prior to preparing his parental assessment report: • Stacy McKay, Private Psychologist Practician who is following the child. • Jack Simpson, Social Worker of the Minister of Social Development in Fredericton, on January 25, 2021. • Nicoli DiSanto Stiller Social Worker, child, adolescent and family therapist, Family Enrichment and Counselling Services, on February 5, 2021. • Elaine Howell, Social Worker, on February 4, 2021. [ 82 ] Dr.

Huot described the relationship between the parties at the time of his report on March 12, 2021, as follows: The parent's relationship is currently tense and they avoid face-to-face contact. They communicate through text messages and e-mails. [The father] said that [the mother] is a jealous woman and is overprotecting her son. He believes that she is doing parental alienation. [The mother] believes that [the father] is often absent for work and that he cannot take all the time allowed with his son. She tries to

accommodate [the father] with a

schedule but they rarely come to an agreement. She described that his relationship quality with his son in mainly for fun time. She added he has an immature relation with his son and does not have an affectionate bonding with [the child]. She stated that it brought discipline issues. On the other hand, she expressed that she wants her son having contact with his father but on her terms . She also believes that since [the father] went to court and took a lawyer it exacerbated the tension between them. She believes he wants his way. She recognized that she should have insisted with her son to go to his father and proposed mediation that [the father] refused. In

summary we are confronted to a tense situation between the parents of an 8-year-old child, caught between his parents and who seems at risk of developing emotional issues. [Emphasis mine][Exhibit 1, page 46] [ 83 ] Dr. McKay shared her concerns about the child, as Dr. Huot further noted in his report dated March 12, 2021: “She [Dr. McKay] believes that [the child] is confused about where he will go, or reside. She believes that his adjustment to his parents 's separation is difficult. She noticed that [the child] is very close to his mother, and that he prefers his mother.

She added that when the parents are getting along the child feels better. She's under the impression that [the child] is caught up between his parents. Mrs. McKay mentioned that the child represses a lot of emotions and has a hard time to cope with the anger perceived around him. This leads [the child] to lash out at his father during a session; [the child] has a low frustration tolerance and hit his father. [Exhibit 1, p.60] [ 84 ] Dr.

Huot also discussed concerns about “Parentification” and “Adultification” in his report: -Parentification I have indication that [the child] is parentified ; it is typical to observe in these cases to have a parent reports that the child is fearful or do not wish to see the other parent. It is also typical that upon interview the child speaks well of the parent and interacts warmly; this was reported by all interveners.

I also have indication that [the mother] who is the favored parent is under the impression that [the child] believes she gets sad and depressed if she (sic) is not around her and will feel that he needs to be there to make sure that nothing bad happens. [The child] could believe [the mother] needs him, [the mother] at times behaves and had comments leading [the child] to believe his mother needs him according to what was reported to me. -Adultification [The mother] also reported that [the child] is like a friend and it is also reported to me that she discussed parents' matters with her son.

This also put at risk the development of adultification a reaction observed more frequently with the only child that is distinct from parentification but not mutually exclusive. In adultification , the parent-child dyad functions more mutually and reciprocally than in parentification. Emotional immaturity is also characteristic with a higher risk for the child to develop anger, anxiety and depression; behaviors observed by most interveners. [Emphasis mine] [Exhibit 1, p.64] [ 85 ] The mother did not complete part of the testing as it pertains to the child’s relationship with his father. According to Dr.

Huot, it is “not common” to omit that part of the testing. The child “clings” to the mother; this strong attachment must be addressed by “both

child and mother” according to Dr. Huot. He believes the mother is a good parent, but with counselling, could “fine tune her behaviors”. He believes the parents need to understand each other and “take the child out of it”. [ 86 ] Given the nature of the allegations in this case, Dr. Huot was asked to comment upon the possibility of alienation.

His conclusion on this point is as follows: (…) To be conclusive of the syndrome the child must absolutely display the two following features among the eight describing the syndrome if it is not observed we cannot conclude to alienation: 1-refusing absolutely to be with his father by displaying behavioural resistance not only at the transfer but also once his home. 2- poor rational for not visiting his father. [The child] visits his father and feels comfortable therefore, the parental alienation cannot be retained as being the case in this situation.

Though [the child] is at time (sic) resistant to visit his father, it was reported to me by the interveners and the father that [the child] is comfortable with his father and once at his father's place. Nevertheless, I am concerned that alienation could develop.

School-aged children are at risk of becoming alienated, parentified or adultified. [The mother] being the main caregiver prior to the separation became naturally the aligned parent for [the child] making [the father] and [the child] at risk of alienation. [The father] is said to be frustrated and irritated by [the mother’s] attitude and avoids communication. [Exhibit 1, p.64] [ 87 ] Dr. Huot’s opinion is that in circumstances where the exchanges have improved over the last three years and the father has a good relationship with the child who enjoys being with him [Exhibit 1, page 57,

section 2], alienation has not been established. [ 88 ] Dr. Huot does not believe that co-parenting is indicated in this case. In his opinion, a primary home for the child is in his best interests, “considering the family tension”. He further proposed “a neutral decision maker (Parent Coordinator) to assist the parents in resolving their disputes for instance [sic] access

schedule and modalities at the exchange.” He noted that the child is happy when he is with his father. [ 89 ] Dr. Huot’s report is not outdated according to him because if he is in Court now, things have not improved. He believes the Court may still rely on his findings. Dr. Huot does not agree to a 50-50 parenting time arrangement because of the communication issue that he was made aware of approximately two years ago.

However, he indicated that if some progress can be achieved in terms of communication, at least in some areas, he would agree to increasing parenting time beyond the 35 percent for the father that he initially recommended. This may be possible with structure and services such as therapy. However, if one parent remains adamant, he believes a 50-50 parenting arrangement will not work. [ 90 ] In cross-examination, Dr. Huot stated that he is not aware if a Parent Coordinator is available in the Fredericton area despite his recommendation.

If none is available, he has no further suggestion in that regard. [ 91 ] The suggestion was made to Dr. Huot that increasing parenting time would in fact reduce the number of exchanges and therefore be beneficial. He said that more respect, more flexibility, and more adaptability to situations may lead to shared parenting. Communication must improve sufficiently to affect the child’s capacity to appreciate the difference. It’s “too late” to wait until the child becomes a teenager. As Dr. Huot put it: “Life goes on”. Communication and Cooperation [ 92 ] Communication and cooperation issues permeate this matter.

Exhibit 16 (emails between the parties) and certain viva voce testimony demonstrate this basic fact very clearly. I also note that Clause (vii) of the Second Interim Order mandated the parties to

“communicate using a permanent record of communication” with reference to emails or other means [Exhibit 1, page 7]. [ 93 ] The evidence that relates to communication and cooperation bears directly on the issues of decision-making responsibility and parenting time. I will therefore review some of the more salient evidence on this point. [ 94 ] Ms. Dawn Pollack is an office assistant to a physician that the child consulted. She recalled an incident on March 12, 2020, when the child consulted with the physician.

The parents left the office but then the father returned with the child and sat in the waiting room until the mother left. However, the mother did not leave the parking lot for another 20-30 minutes. Ms. Pollack could see the parking lot through the office windows. The father requested to stay a little while longer because he was concerned about the mother “intercepting them” on their way out. Meanwhile, the child was looking out the window but was not upset.

When he saw his mother go by the window, he waved to her. [ 95 ] In August 2020, the father had parenting time every other weekend, once per week from 2:00 to 7:00 p.m. and two afternoons on the opposite weekends. The father testified that the child had a great summer despite Covid restrictions. However, as the emails confirm, it was in late August 2020 that the parents could not agree on whether they could attend the child’s activities at the same time. The email exchange regarding the child’s activities for the fall of 2020 started on August 27, 2020, and continued.

The emails on August 29, 2020, depict the back and forth between the parents on this issue. First the email from the father states that: [Mother], you have to understand these activities are for [the child], not for us. Unfortunately, the boundaries have to be that you cannot be there during my access as this causes problems for [the child]. We have third parties involved for a reason. I will drop him off to you at 7pm or after his activity as per the order. If [the child] truly wants to do these activities he will have no issues with this. Please put [the child] first here.

This goes for gymnastics or any other activity or sport for [the child] as well. If you agree to not come to his activities during my access I will agree to the same. Hopefully in time, this can change. [ 96 ] Thirty-seven minutes after receiving the father’s email, the mother responded as follows: I am not sure I understand your problem here. [The child's] activity is done at 7pm when Your access time is done as per the order. So I will pick him up at 7pm when he is to be back in my care, as per the order. This is obviously easier on [the child] and is one less exchange and don't forget this about [the child].

These are your artificial boundaries not created by the court. No one watches piano. There has never been a third party at drop off so I have no idea what you are saying. This has nothing to do with the activity at all. You drop him off and I pick up. Perfect. Less exchanges for [the child] and therefore easier for [the child]. Simple. I will not agree to not watch his activities during your access days and I have no problems with you watching during my days. It is not even realistic to ask a parent to miss out on the child's activities. [ 97 ] Communication and access issues continued into the late fall of 2020.

On November 26, 2020, the father gave the mother notice of his shift change at work for the new year. He suggested they continue with the 4-week cycle but noted that it “will have to be tweaked a bit”. The accommodation sought by the father, as he indicated in his testimony, was in respect of the day after a shift because he could get a call or be up all night due to the nature of his work. The mother responded to his email shortly thereafter as follows:

I will look at this in detail when I have time over the next couple of weeks. There are many people affected by your

schedule and, most importantly, [the child] is just getting used to his current schedule. This will be difficult and [the child] has scheduled activities that could be affected. I'll get back to you on what changes can be made and when they could start as I have commitments in January all booked that involve [the child]. I'll get back to you, but at first glance, not many changes really need to be made. [ 98 ] The mother says that the proposed changes affect her and the child’s

schedule and his activities. The father then inquired about what specific activities are affected and asked for a “legitimate reason why this does not work”. He says her work

schedule is flexible and changing one day should not be a problem. After several exchanges, the mother finally responded by stating: “You will never agree to anything I say anyways. If you can’t accept that, then we will just leave it as is.” [ 99 ] Attempts to change the parenting

schedule over the Holidays in 2020 were also stressful. On Christmas Day at 11:42 a.m., the mother made this request: My family has decided to go ahead with our annual Boxing Day dinner. Obviously we hope [the child] can come and [the child] would really like to keep this tradition. Would you be able to bring him tomorrow for dinner? Or I can come get him and bring him back? Whatever works best. [ 100 ] The father’s response was to decline the offer, as per his email: Letting me know this on Christmas Day is very short notice.

I'm not getting any extra time with [the child] over the break as you are and this is right in the middle of my access weekend and it is not in [the child]'s best interest to add additional transitions during this time. It worked out this year where you had [the child] on Christmas Eve and Christmas morning so it is very reasonable that I don't lose any of my time with [the child]. This is an exciting time for [the child] and I and we are going to make the most of our time together. [ 101 ] Arguments over the proposed changes to the parenting

schedule stemming from the father’s work

schedule continued. On January 4, 2021, the father was frustrated and asked the mother to pick “Schedule A or B” to finally achieve “clarity”. The mother confirmed

Schedule A “until further notice” in an email and added: “All of the proposals I have made have only been to accommodate YOU. I don’t need any changes to the

schedule at all. This is all to accommodate you, only.” Obviously, the parties were unable to resolve the proposed changes to parenting time based on changes to the father’s shift/work

schedule as the email exchanges of December 8, 2020, and January 4, 2021, confirm. [Exhibit 16, pp.80-84]. [ 102 ] Discussions about gymnastics and piano also continued into the new year of 2021. The father’s evidence was that the child did not have much interest in gymnastics after he started to have access. However, the mother registered him for gymnastics on Saturdays, which is of course when most of his parenting time happens. The father says that it’s too hard for the child to go to gymnastics with both parties present.

[ 103 ] On February 20, 2021, the mother informed the father in an email that: “[The child] does gymnastics every other Saturday morning and then a day through the week depending on our

schedule during that particular week. I have made these arrangements as you said [the child] didn’t like gymnastics and you did not want your access interrupted.” [ 104 ] As a result, the Court issued the following Interim Order on March 6, 2021: 2. Paragraph 1(

i) of the Second Interim Order dated February 12, 2020, to be varied as follows: (

i) access shall be on alternate weekend basis as set out below and with midweek access being scheduled on a four-week rotation as follows wherein Week 1 commences on January 11, 2021, and then continue thereafter; Access shall be from after school to 7:00 p.m.: Week 1: Tuesday and Thursday Week 2: Wednesday Week 3: Tuesday and Wednesday Week 4: Wednesday [ 105 ] The parties also disagreed about the proper approach to ensure they both received notices from the school about the child.

The principal inquired by email on September 9, 2021: “We know it is important that you are both aware of what is happening in his day-to- day life at school. When there are forms to be signed is it acceptable that the parent who has [the child] will sign them.

I will need you to make that decision, together, and collectively respond with an answer agreeable to both of you.” The father asked the mother if she “(…) was fine with her questions of both of us able to sign where we both have equal rights?” The mother responded within minutes to his email by stating that: “I will let the principal know that as the primary caregiver, forms need to be signed by me.” [ 106 ] The discussion carried on into the third week of September 2021 as the emails confirm [see Exhibit 16, pp.109-112].

The suggestion was made by the principal, Julie Holt, that two copies of school notices would be sent home with the child, one for each of them, “to ensure both parents have access to information for [the child]”. [ 107 ] The mother indicated to the father that school notices “will be scanned and emailed to you once a week. It is neither fair nor appropriate to have [the child] lug papers all over” and then added in a further email dated September 20, 2021: If you read the e-mail from [the principal], it is the adults’ responsibility to ensure information is shared, NOT [the child’s].

That’s not his responsibility to sort through notices. Like I said, I will e-mail notices that come home on my day that I have two copies of AND I will leave a bin out with your copies every Wednesday (one Thursday) when you drop [the child] off, since you can't print your own from my e-mail. [Exhibit 16, p.112] [ 108 ] Ms. Holt testified that she had concerns about communication between the parents. She was provided with a copy of the latest order providing equal access to education information, so she copies everything to both.

She met no resistance from the parents with respect to them being provided equal information. The child was her main concern. She has not received any emails this school year (2022-2023) that cause her any concerns; she says the child is happy. In fact, Ms. Holt has had no concerns or issues regarding the child’s education since September 2021. The child is neat, tidy, well-dressed and well-organized. [ 109 ] In May 2022, the father says the exchanges were going okay so he suggested a different approach because he was still not having any overnight parenting during the week.

This suggestion was promptly rejected by the mother. [ 110 ] In the summer of 2022, the father says that he went camping with the child and enjoyed several daytrip, type of activities. The father says the mother created a “countdown” for the child to look at while he was on vacation with him so he would know when he was returning to his mother’s care: the screenshot of the countdown shows “5 days, 20 hours, 33 minutes and 59 seconds” [Exhibit 16, p.187]. The father says the child never expressed a desire to return to his mother.

[ 111 ] However, the father says that after a court appearance regarding marital assets/property, the child changed to the point that he would not go to him during a pickup. The Final Consent Order regarding marital property is dated August 23, 2022. According to the father, that was the first time the child refused to go with him since 2020. Emotions were so raw that the father sent the following email to the mother on August 31, 2022: Wow … Your inconsideration of letting me know this 30 minutes before is appalling. You knew I'd be driving out and wouldn't get this until after I left.

You truly are a horrible person. Your selfishness is unbelievable. June can't come soon enough for your games to finally be over. And I hate to wish time away, but I also can't wait for when [the child] is an adult and he can see how horrible of a person his mother is. Wow [mother], you truly are something else. [Exhibit 18, page 68] [ 112 ] That email apparently insufficiently conveyed the father’s feelings at that time, because he sent a follow-up email six minutes later stating that: You could of (sic) responded to my e-mail last night or this morning and not purposely sent it as late as you did.

Your games are not subtle [mother], everyone can see through you. It's unfortunate you are again restricting my access with my son. If you didn't tell him adult things and fill his mind with garbage, he would have came (sic) with me as normal during my vacation. The abuse has to stop, please. [Exhibit 18, page 68] [ 113 ] In cross-examination, the father attempted to convey to the Court his regret in sending those two emails. [ 114 ] Those circumstances led the father to ask the mother if the child could return to see Dr. McKay because “(…) the pressure he is under during picks and drop-offs is not right.

This all escalated since court in April and I'm afraid, as before, he is hearing too much and being manipulated at your place. I want him to be able to talk to someone about it. Why can't you agree for him to go? I'll even take him on my time if you don't want him to go.” The mother’s response on September 8, 2022, was as follows: In any event, [the child] is doing great and I have no issues. He had a seamless transition from a fun summer to grade 4. I see no reason for him to see Dr. McKay.

He is not influenced or manipulated in any way at my home and your accusations of such are getting tiresome and are completely invalid. Likely the issues you are having stem from your poor attitude towards me, that is obvious to [the child], and the things [the child] hears you say about me to your parents and on the phone, etc. when you think he is watching TV. [ 115 ] On November 6, 2022, the father asked the mother if he could pick up the child on Thursday after school because there was no school on Friday. That simple request quickly devolved into a rather harsh discussion on various topics.

In response to the request by the father, the mother suggested that he ask the child if he wanted to be picked up on Friday because they had plans Thursday night. The father suggested on November 8, 2022, that in his view, it was best if the parents decided “rather than putting [the child] in the middle.” The mother then responded the next day by saying: “I guess if that's how you look at it then 3pm on Friday would be best as that's what [the child] is expecting and planning for.

Thanks.” Perhaps not surprisingly, the father took issue with the mother’s approach and replied as follows: It's not just how I look at it [mother]. It should be you and I making these decisions and not putting [the child] in a loyalty battle. This is the umbrella that Dr. McKay refers to, [the child] should not be put in the middle of this and forced to make these decisions. He is the child; we are the adults. There is no good reason why I cannot pick him up at 9am this Friday. Please reconsider. Also, just a reminder, can you please send [the child] appropriate clothing for this weekend.

The “best deh ever” shirt and the other clothing you have been sending are too small, have holes and are not appropriate. [ 116 ] The mother was clearly offended by the father’s comments, as her email of November 10, 2022, demonstrates:

Your smart, condescending comments don't help anything. Every time I agree to you having extra time, it becomes a problem where I am blamed, accused, put down and picked apart. You told me in August to follow the order from now on, so why not follow your own rule and do that so we don't have these problems. I've never had anyone make any comment whatsoever about [the child's] clothing being too small, ripped or inappropriate.

If you don't like the clothes he picks to wear, change him into other clothes while he's in your care and leave me alone. [Exhibit 16, pp.154-155] [ 117 ] On January 25, 2023, the child started staying with his father Wednesday overnights with the mother’s consent. However, the father works one of every four Wednesday nights. She indicated in her testimony that returning the child to her residence on Thursday mornings is best for the child because she normally drives him and some of his friends to school and he likes to socialize.

The mother testified that the child is stubborn, and his behavior reflects this trait: the child has difficulty adjusting to a new schedule. [ 118 ] On January 26, 2023, there was a snowstorm and, as a result, school was cancelled. The father suggested to let the child sleep in and to give the storm a chance to settle down. The mother stated that the storm was supposed to “get worse” at 8:00 a.m. and therefore requested that the father return the child to her “now”. The father reminded the mother that the child was not feeling well and had a head cold.

He confirmed that he would bring him back when the storm settles, urged her to be reasonable and noted that “the plows have not yet been by”. [ 119 ] The mother responded by sending her father to pick up the child: “My dad will be by shortly. Please have the child ready. The storm is supposed to get worse. Not better. Next time, please plan ahead for these things.” The father was surprised by this response and relented, as per his email sent at 6:30 a.m.: Are you serious? You want to risk [the child] being on the roads in this weather?

How many times have you cancelled my access because of the weather, I told you I would drive him home when the roads are better. I will take him home, please put [the child] first [mother]. Enough with the nonsense. [Exhibit 16, p.164] [ 120 ] The mother’s evidence is that it remains hard for the child to have extended or longer visits with the father. For example, the mother testified that it was hard to convince the child to attend parenting time with the father during the 2023 school March break. [ 121 ] On the weekend of April 15-16, 2023, the child went to a basketball tournament with his father.

The father testified that they had an amazing time and that the child “loved it”. The mother wanted the child to call her when he woke up on April 16, 2023. The father inquired if she needed anything and that they were in a rush in the morning because of the tournament schedule. The mother persisted, indicating that “[The child] was quite upset at the number of times he had to ask to call me this morning, and was still not allowed.

Certainly not what you told me would happen in your previous e-mail.” This prompted a lengthy and pointed response by the father: [The child] NEVER asked me once to call you this morning. In fact, he didn't use his phone until we got in th

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