DP v CM, 2023 ABCJ 149

In the Alberta Court of Justice Citation: DP v CM, 2023 ABCJ 149 Date: 20230630 Docket: FF903006428 Registry: Edmonton Between: DP Applicant - and - CM Respondent Reasons for Decision of the Honourable Ju stice David G Hancock Process [ 1 ] This matter was originally a Parenting and Child Support application brought by DP (Mother) in August of 2016 in regard to: BRM born September 2013 (the Child) [ 2 ] CM (Father) responded with a variant of the proposed parenting time. [ 3 ] The matters under the original application were finally resolved by Parenting Order dated March 1, 2019 (the Original Parenting Order), and Child Support Order dated August 30, 2019.

The March 1, 2019, Parenting Order was a detailed 5-page order which essentially provided for a shared parenting, week-on, week-off, with provisions for sharing holidays, for communication, sharing decision making, etc. [ 4 ] The Original Parenting Order provided that neither party could come back to court without leave.

Counsel for the Child had been appointed and the Original Parenting Order provided, due to the contentious nature of the matter, that she remain counsel for 2 years after granting of the order – March 1, 2021, in the event that further court action ensued. [ 5 ] This application was filed by Mother on August 4, 2021. She sought to amend the Original Parenting Order to have it changed to Mother having day-to-day parenting. She alleged that Father was breaching the Order by using physical punishment on BRM.

She also alleged that Father was improperly withholding the child from her after she had a some “personal issues” to deal with. She alleged that there was a Children’s Service investigation ongoing and that police had been involved. The appearance date was set for August 18, 2021. [ 6 ] Father appeared at the appointed time. He had not filed his response as it was not in acceptable form for filing. Father appeared in the manner which has come to be known as a “Freeman on the Land”.

His materials were presented in the manner, language and bindings of documents utilized by people in that group (or, as described by Justice Rooke in Mead v Mead

(2012) ABQB 571 “Organized Pseudolegal Commercial Argument Litigants” or “OPCA Litigants”). The Court instructed the clerk to file Father’s information after having him affirm it as his evidence on the record. In that way the material could be available to the court for the

purposes of the application.

The material commenced with several pages with unusual formatting, language structure and trappings (fingerprint, cord binding, etc.) but also contained some material with information which could be read and understood as part of this process. [ 7 ] In essence, Father disagreed with Mother’s application and proposed that Mother’s parenting proposal be reversed, with him having day-to-day care of BRM. [ 8 ] On August 3, 2021, on its own motion, the Court reappointed Counsel for the Child to ensure continuity of representation and to ensure the child’s voice was heard. [ 9 ] An Interim Variation of Parenting Order was granted August 18, 2021 (the August 2021 Order).

The Order essentially reinstated the shared parenting model on a week-on, week-off rotation with provisions for holidays and special days. [ 10 ] The August 2021 Order continued provisions for BRM to have telephone/video contact with the other parent at any time. Pick up and drop off exchanges were set to provide for non-contact exchanges. Decision making was to continue to be shared.

Mother was named responsible to ensure that BRM had the appropriate medical, dental and vision appointments but both parents continued to be entitled to participate in any appointments and to receive information from health and educational professionals in BRM’s life. BRM was to be registered for counselling with his current psychologist and such other professional as may be recommended by his health providers. [ 11 ] Both parents were afforded an opportunity to investigate and provide information relative to BRM’s school attendance. Mother did so.

Father did not provide his information until after the set period, by which time authorization had already been given for Mother to register RMB for school at Soraya Hafez Elementary School. The August 2021 Order was issued with that school named. [ 12 ] Father subsequently raised concerns about his ability to get BRM to the school. Apparently, his driver’s license has been suspended by MEP and the distance made getting BRM to school difficult. Father has not brought any application with respect to varying the Child Support Order or dealing with any issue of arears or arears enforcement.

He has alluded to the issue in documents he provided but did not raise the child support matter in a cross-application. Child support is not currently before the Court and the previous order in that regard is still in effect. [ 13 ] Father raised concerns about needle vaccinations.

The August 2021 Order provided that he have the opportunity to request alternate forms of medication delivery if same were available. [ 14 ] Physical discipline was prohibited. [ 15 ] Parties were forbidden to speak disparagingly of the other parent with BRM or in his presence and were not to discuss this court proceeding with him. [ 16 ] Due to BRM’s significant behavioural issues counselling was ordered without the further requirement of consent. Mother was to consult with the school and could authorize a program of counselling with the school without the further consent of Father.

If either parent believed additional counselling was necessary, they could propose a counsellor to the other parent. If agreement could not be reached, Counsel for the Child would select the counsellor. [ 17 ] The matter was to return to Court for review on October 1, 2021, to determine how matters were proceeding. Father later requested the opportunity to appear via Webex, unfortunately not available in the assigned courtroom. In his communication he raised concerns about child support issues inhibiting his license.

Father was reminded that he had not brought the matter of Child Support forward and that it was not currently before the court. He was also reminded that for information to be considered by the Court it must be properly sworn/affirmed in an affidavit. Father’s email communications with the Court were not in that form. A proposed adjournment date of November 1 was offered.

As neither parent responded the matter was adjourned Sine Die (without date). [ 18 ] The matter was returned to docket court on November 16, 2022 by way of a “Bring Forward” Application brought by Counsel for Mother (previously self-represented, as was Father). Mother’s concern was that the August 2021 Order was not being followed. Mother’s allegation was that her parenting time had been interrupted by Father obtaining an Emergency Protection Order against Mother on July 14, 2022. Her representation to the Court was that the EPO “was quashed” on October 6, 2022.

Father refused to allow Mother her court ordered parenting time. A Police Enforcement clause was requested. Father asked for a 30-day adjournment. By Order of November 16, 2022, the August 2021 Order was reaffirmed as being in full force and effect and a police enforcement clause was added on an interim basis. The matter was set to return to docket court on January 12, 2023, and to a one-day interim hearing February 6, 2023. [ 19 ] Father did not appear in court on January 12, 2023.

Representation to the Court by Mother’s counsel was that Father was not following the terms of the Order and had refused to recognize Mother’s parenting time. No material had been filed by Father. No answer was given to the allegations. An Order was granted suspending Father’s parenting time and granting Mother day-to-day parenting until the hearing date of February 6, 2023.

An Enforcement Order was granted providing authority for a Peace Officer to return the child to Mother immediately until the hearing date. [ 20 ] Father did not comply with the Order and Peace Officer enforcement was necessary. [ 21 ] The parties appeared and were heard in a one-day hearing February 6, 2023. On that date Mother’s parenting time was extended to March 9, 2023. Father’s parenting time was suspended until that date. Mother was ordered to ensure that BRM had access to Father by telephone or video during that period.

She was ordered to ensure that BRM had the opportunity to consult with his counsel and to ensure that he continued with his home-schooling curriculum. Father was ordered to provide access to the necessary materials to allow schooling to continue. Facts:

[ 22 ] Mother and Father are about as different as two parents can be. Their child, BRM, has behaviour disorders which make parenting difficult. It is not only possible, but likely, given our understanding of brain science and brain development in children that the dispute between and the behaviour of both parents has contributed to BRM’s behavioural issues. His disorders have also apparently affected his schooling. He requires special handling to deal with his abilities and behaviours. His behaviour has been described as escalating to violence.

While there was no direct evidence from the school, the evidence of the parties indicated that the school could not handle some of BRM’s behaviour and agreed that until his behaviour could be modified, he would be better attending school online. Covid protocols made online schooling an easier option. [ 23 ] As a result of behaviours at school, BRM was taken to the Stollery Children’s Hospital. In order to deal with his behaviours at the hospital, he was administered Ativan.

Father has taken great concern about not being notified, his permission not being sought, and generally, the administration of any medications to BRM. [ 24 ] Father has been described as a “Freeman on the Land.” Whether he acknowledges that “label” or not there is no question that his behaviour throughout this matter – in particular during both the docket appearance on November 16, 2022 and the hearing February 10 can be described as “challenging”. He has his own view of the world, the law, the authority of the courts, and his authority derived from the Creator.

He challenges the authority of the Court and replaces the rule of law with his own version of reality. A full description of the behaviours of OPCA Litigants, as described in Mead, fits the behaviours exhibited. [ 25 ] Father refused to accept the authority of the Court to order Counsel for the Child and refused to allow the child to consult with counsel.

He used, as the basis of his decision, that he is the “Minister of the child” and that afforded him the right and obligation to protect his child from the issues before the Court. [ 26 ] The documents he did file with the Court were, for the most part, nonsensical. Although I facilitated the filing of the document in August 2021, it was almost impossible to determine from the documents what evidence he was trying to put before the court and what position he was taking. [ 27 ] In approaching the Court Father demands responses to his queries of authority and assurance.

He was advised by the Court as to the Courts jurisdiction under the Provincial Court Act and, in this case, pursuant to the Family Law Act . He was advised that when there is a dispute between two parents/guardians which cannot be resolved between them, the Court has jurisdiction to decide and that Court Order is not an “Agreement between the parties” but a decision of and order of the Court. Court Orders are to be followed but for exceptional circumstances. In those circumstances it is incumbent on the party breaching the Order to immediately bring the matter before the Court to be heard.

Self help remedies are not condoned. Neither parent has the right to take it upon themselves to determine when an Order can be breached, except in exceptional circumstances when a child is at immediate risk, and then to take appropriate steps immediately. Father did so when he applied for an Emergency Protection Order, but then failed to follow up with an application to amend the Parenting Order.

I make no comment on the issuance of the EPO or whether that was an appropriate circumstance – only mentioning it in the context that, if there is an issue, how it can be dealt with. [ 28 ] Father argued that the August 2021 Order “does not have the operation of judgement”. I believe him to mean that, as Father, he needed to be able to exercise judgement when he felt his son was in danger – that a court order could not exercise judgement in that circumstance.

While his language is convoluted, he is right that either parent can make a determination, in appropriate circumstances to protect a child where there is danger. They cannot, however, make unilateral decisions beyond the immediate situation and must return to Court if they believe the Order of the Court is no longer in the best interests of the child. That is not a decision which one parent can make in isolation. The Court Order is not nullified by the parent’s action. Again – the Court does not condone self-help remedies in defiance of Court Orders.

It is not in the hands of Father to simply decide that he knows what is better for the child! [ 29 ] Counsel for the Child was placed in a difficult position as BRM apparently refused to meet with her, indicating that his Father had told him not to. In result, the Court is deprived of the voice of the child in matters which significantly affect his life.

Father interfering with the process of the Court and the Court Ordered Counsel for the Child is another form of disrespect to the Court and the Court Order which cannot be condoned. [ 30 ] The Order of January 12 had been enforced, but without the cooperation of Father. It was brought to the Court’s attention that Father had taken the child out of Edmonton. When they were located Father did not willingly comply with the efforts of Peace Officers.

I understand there are other charges and court matters arising from incidents with the Sheriffs at the Law Court building in November and with the Peace Officers in undertaking their duties in returning the child to Mother. Those matters are not part of this matter before the Court. [ 31 ] At the hearing, once we were able to get past Father’s posturing, we actually heard appropriate evidence from both Mother and Father and their respective witness. [ 32 ] It is important to note that the Court is not here to judge Father’s religion, cultural expression, view of the law or personal beliefs.

He is entitled to his belief system and he is entitled to raise his children in his belief system, so long as he does not harm them or put them in harms way by doing so. He is however, subject to the right of another parent or guardian to also participate in decision making in respect to the child and determining how the child is to be raised. Father’s approach to the Court and indeed his disrespect for Orders of this Court does not in any way impact how the Court deals with the only important issue before the Court which is “what is in the best interest of the child”.

Father should realize that he does live in civil society, and notwithstanding any of his beliefs, he is subject to the rule of law. It does apply to him. When there are two parents, unless otherwise determined by the Court, he cannot unilaterally make decisions. He cannot ignore Court Orders. The Orders of the Court will be enforced! Mother’s Evidence [ 33 ] Mother testified that the parties had a relationship. They started living together shortly after BRM was born and lived together “off and on” for two years. After they separated, she left the neighbourhood and enrolled BRM in a daycare.

Father did not approve. BRM was later enrolled in preschool at Elizabeth Finch Elementary School.

[ 34 ] BRM was described as having behavioral issues. He was a flight risk, would get aggressive with others. The Edmonton Public Schools psychologist was engaged to review his situation. Mother took BRM to the hospital because she had to pick him up from school when he assaulted school staff. At the hospital they tried to give him Ativan -which he resisted indicating his father had told him medication would have adverse reactions. The injection was administered to calm him down.

After assessment he was diagnosed with eczema, ADHD, ODD, unspecified anxiety disorder, and unspecified obsessive-compulsive disorder. [ 35 ] A letter dated November 26, 2021 and entered into evidence as Exhibit “B” to Mothers affidavit sworn October 25, 2022 from Dr. Pon, BRM’s pediatrician, outlined her diagnosis and the recommended medications. Mother testified that the pediatrician, Dr. Pon, indicated to her that the diagnosis had previously been given to Father when he attended with BRM on an earlier occasion over a year prior. Mother had not been made aware of that diagnosis.

Medication had been prescribed but Father had not wanted to have BRM use medication. The Doctor’s letter refers to biphentin, olanzapine and melatonin. Mother indicated that she did not give BRM the medication because she knew Father was opposed and she did not have court authorization. She indicated that she knew Father would not administer the medication and therefore with week-on/week-off parenting the medication would be stop- start, it would not be fair to BRM and could be harmful to his body. [ 36 ] On Cross-examination Mother was asked about administering medications. She indicated that she had not.

She had only given BRM melatonin to assist him sleeping. Melatonin is not a prescription drug. Father asked if she was aware that Olanzepine is an atypical antipsychotic not approved by health Canada for children and adolescents. Mother’s response was that she had no knowledge about the drugs, she was prepared to follow medical advice.

No medical or expert evidence was provided to the Court with respect to Father’s assertion. [ 37 ] Mother recounted that BRM had indicated that Father said Mother only wanted to drug him up, that when he [Father] was a child he was drugged and ended up slitting his wrists and almost dying, everybody in his family that took medication ended up in jail – now BRM is scared that he is going to die if he ends up taking medication. [ 38 ] Mother’s evidence was that BRM was not attending school often during Father’s parenting time.

He was registered at Soraya Hafez Elementary School in accordance with the terms of the August 2019 Order. During Covid he had been on-line schooling and had been successful. Behaviour issues at the school, and a lack of appropriate programming at the school, according to Mother, resulted in a discussion between Father and the school and a decision that BRM should continue on-line schooling. Mother met with the school later and concurred in the decision. [ 39 ] Part of the problem for Father was that his driver’s license had been cancelled due to problems with MEP.

As noted above Father has not brought any action to deal with child support issues. Father did not make any application to change the determination with respect to schooling. [ 40 ] BRM was to return to Soria Hafez in September 2022, however Father had full-time parenting at that time due to the EPO obtained in July. Instead of returning BRM to school, and without consulting with Mother, Father enrolled BRM in home-schooling. [ 41 ] Mother testified that Father had arranged for visitation with BRM just after his birthday at Chuck E Cheese, supervised by CM and his father [paternal grandfather], for about an hour.

She also had parenting time at a swimming pool. Three different times she was able to spend time with BRM just sitting in her car. She did not get any of her Christmas time and has not had Christmas parenting in two years. [ 42 ] Mother set up two appointments for BRM to see his counsel, but BRM would not leave the house. BRM said his dad told him not to talk to her, even if he did go he said he was not going to talk. [ 43 ] With respect to schooling – BRM is apparently enrolled in an online “Ron Paul” curriculum.

No information was provided to the court as to the nature of the curriculum being used or its acceptance by Alberta Education. Mother was locked out after one session and unable to access the school resources. Father was directed on February 6 to facilitate access. Mother has no knowledge about the curriculum and was not consulted about it. Mother wants BRM to go to a regular school, and according to Mother, BRM wants to return to a regular school, with other children, “he wants to be normal.” Mother wants BRM to be able to thrive in public settings.

On cross- examination Mother acknowledged that BRM appeared to be more successful with his school results. She maintained that BRM was supposed to return to the classroom, that she had not been consulted about homeschooling and that she did not have any understanding of the Ron Paul curriculum or its validity – no information had been provided. [ 44 ] Mother testified that prior to BRM being returned to her care she was been restricted from seeing BRM, refused access. She testified that she called every day, but Father did not respond.

She believes that CM and his father have been indoctrinating BRM with their beliefs and have been alienating BRM from her. The EPO was used by Father to defy the Court Order and maintain sole parenting from July of 2022 until the November docket date. Father maintained that he had the right to do so if BRM was in danger. Mother acknowledged that she too had failed to follow the Court Order in the past by withholding BRM from Father’s parenting time, giving the excuse that it was in retaliation for Father withholding.

Mother’s withholding was apparently in July and August 2019 prior to her application to the Court to vary parenting. [ 45 ] Father has engaged in “behavioural therapy” with BRM and prefers not to use medication. He provided in his filed documents information with respect to a William Dupree purported to be a “Learning Specialist” and an “experimental psychologist.” Mother’s evidence was that she had been in contact with Mr. Dupree, who advised that he was no longer associated with Father.

She also testified to having checked with California authorities and determined that Dupree is not licensed to practice medicine or psychiatry in California. Father later described Dupree as “experimental.” Father asked Mother on cross-examination as to whether BRM’s behaviours had improved while BRM was in his care to which she replied she had no knowledge, she was not allowed to see him. [ 46 ] Mother acknowledged that she had had a health episode in March of 2021. As a result, BRM was in Father’s care for a period of time. Mother’s evidence is that she was in a difficult period in her life.

She “hurt herself,” which I take, given other evidence during the trial, as a euphemism for attempting suicide. She testified that she has come through that and is currently healthy. When asked on cross-examination about drug and alcohol use Mother acknowledged that she had a problem in the past but indicated that she was now

clean and sober. [ 47 ] There was no evidence that Mother is not able to parent BRM at this time (subject to the ability to deal with BRM’s behaviours). Mother has appropriate accommodation with appropriate room for BRM and for her older child. [ 48 ] Mother wants BRM to have a normal life, “not to be subjected to conspiracy theories and craziness,” to have a normal school life and friends, be around other children. She is concerned about the lifestyle of Father, and what BRM is subjected to in Father’s care.

She testified to being concerned that he is not allowed to play outside or with friends – “he said he has a couple of friends but doesn’t get a chance to play with them. [ 49 ] Mother wants the time to properly deal with BRM’s behavioural issues to try and achieve a healthy state prior to reverting to medications. She testified to having consulted with CASA and that they are ready to assist with BRM. She is concerned that Father has conditioned BRM about treatment and medications. She believes Father made BRM fearful of wearing masks, as an example.

Father [ 50 ] Father described a situation at BRM’s school involving aggressive behaviours during an exchange. According to Father Mother was picking up BRM on a day which was his turn. It resulted in verbal altercations as well as Father physically reacting including standing in front of Mother’s car. [ 51 ] Father called three witnesses in addition to his own testimony. The first described “the good, the bad and the ugly with BRM,” Father has the patience of Job, guidance re behaviour, always done with love. She described herself as mother of 5 and a grandmother.

She has had opportunity to observe BRM, indicates he loves games, loves, and connects with horses, animals, her three dogs. She sets behavioural expectations and BRM is respectful of that, she has not had problems with his behaviour. She described him as loving his parents and wanting them to get along. She attested to CM only wanting the best for BRM. The witness, however, expressed that a Court Order could not supersede the parental role. She acknowledges only knowing BRM for a year, and that he had been at her place 5 or 6 times and she has been to Father’s a couple of times, Father was always there.

She did not know Mother. She had never had to discipline BRM. [ 52 ] Father’s second witness is an educator in elementary education. She described herself as having brain-based learning as a specialty. The Court clarified to the parties that the witness was not being qualified as an expert and therefore not able to give opinion evidence. She expressed a view that it was best if children were not medicated, she saw too many children on Ritalin. She expressed concern about its effect on brain development and strongly discourages medication except as a last resort.

No expert evidence was tendered in respect to the use of medications in treating a child’s behaviour. This witness expressed a number of opinions and beliefs with respect to the skills that children should be taught. While her views may have been of interest, unfortunately she was not presented as an expert on brain learning, medications, or education. Her views were simply that – the views of another parent, and her views of what she felt happened in the public education system. One person’s opinion. She had not seen CM teach BRM. She did not know Mother.

She had not seen any of BRM’s behavioral issues, never seen BRM in a classroom. Her children did not have any of the behavioural disorders discussed regarding BRM. [ 53 ] Father’s third witness testified to knowing CM and BRM “for about over a year.” She testified to Father’s relationship with BRM to be a loving one but having witnessed behaviours and how Father handled them. She described herself as an educational assistant in the Edmonton Public School system. She also described herself as having worked in Burnaby School system with kids with high behaviour needs. She was not qualified as an expert.

She described CM’s teaching and his dealing with BRM’s behaviour as being appropriate and effective. She had not experienced interaction between Mother and BRM. She provided assistance to CM but had never attended medical appointments or been involved in any discussion between Mother and Father regarding BRM. [ 54 ] Father commenced his testimony by giving details of his version of events when the RCMP enforced the Enforcement Order granted in January 2023. He described police attendance at his residence, his refusal to comply with the Order, and multiple subsequent visits to his residence by police.

He described it, ironically, as a breach of the Criminal Code

section 423 – Intimidation. He also alleged breach of Criminal Code s.176 , which is obstructing or violence to, or arrest of officiating clergyman/ disturbing worship or religious meetings. In his evidence describing how he would not comply with the lawful Order of the Court he sought to invoke the Criminal Code . He has not identified himself as a Clergyman, other than his description of himself as “Minister to my son.” There was no evidence of religious ceremonies being held. In any event, those issues are not before the Court.

Another Court will deal with any charges arising from those events. [ 55 ] Father then went on to use pseudo legal babble to describe how all his rights had been violated. [ 56 ] Father did testify to his parenting style with BRM. He described using behavioural approaches to deal with BRMs outburst. He claimed that the break from involvement of Mother made it possible for him to modify the child’s behaviour with successful results. Part of his success was attributed by him to the stability of not having to travel between the parents.

He also indicated it helped because Mother was unable to deal with BRM’s behaviours and would “return him early,” using return to Father as a punishment for bad behaviour. [ 57 ] Father described conflict situations involving BRM when Mother returned him, “dragging him from the car” and “throwing his bag on the lawn.” Mother acknowledged one incident where BRM attacked her in the vehicle and that she reacted in that manner, with both parents pulling BRM from the car. Father also described an attempted exchange at school, where Mother arrived to take BRM when it was to be his parenting time, as mentioned above.

On another exchange there was an attempt to have BRM go to Mother’s car, father resisted the transfer and was holding BRM when BRM was inadvertently hit by Mother attempting to free him. That incident resulted in Father applying for and getting an emergency protection order, as described elsewhere.

It was clear from both parties that, notwithstanding the provisions of the Court Order providing for no contact exchanges, both Mother and Father exhibited behaviours which demonstrated adversity, anger, physical and emotional violence and lack of the dignity and respect so important to shared parenting and to the brain development of a child.

[ 58 ] Father then reverted to describing concerns about Mother’s behaviours in previous years regarding the use of alcohol and drugs as well as violence against the person. These were clearly historical incidents being alleged. Father also described his attempts to provide opportunities to Mother to have parenting time in “a safe and supervised manner.” He arranged other meetings at the Chuck E Cheese and one or two times at the Clareview Recreation Centre.

What he described was clearly his view of being in control and setting up controlled visits. “Trust had still yet to be established given the previous experiences with [Mother] causing herself harm and causing others harm.,” “I was hopeful this time around things would be better and she had time to develop herself.” [ 59 ] Father described his sole parenting time between July and October 2022, created by the EPO as providing a great opportunity for his parenting.

BRM “received homeschooling by myself, and he excelled.” He described having great opportunities with BRM and that they “bonded deeply, and there was nothing there to strengthen the maladaptive behaviour, and he learned better outlets to deal with his frustration.” During this time [BRM] went from frequently attacking me while [Mother]s influence was present to him rarely attacking me.

This change in behaviour was quick when he was not in the middle of the conflict.” [ 60 ] Father described great progress and wonderful parenting activities reading and other activities with grandparents and being with animals at a farm in the vicinity. [ 61 ] His version of events indicated a return of “maladaptive behaviours” and a rebellion against home-schooling once Mother was again in the picture.

Reverting to an earlier period, Father described difficulty in getting BRM to school – a 55-minute bus ride and 20 - 30 minute walk in the cold each way. “This concern was addressed in court yet ignored because the court has disabled my ability to utilize any registries therefore to deal with the vehicle.” Simply put, MEP enforcing a Child Support Order. [ 62 ] Father then described his concern with the administering of drugs.

He alleges that Mother gave BRM Olanzapine – saying BRM described a big red pill which made him feel unwell – that he did not like it and did not want to take it. “The use of the drug Olanzapine to [BRM] by his Mother was with the cause of the physical damage and harm to our boy and his body.

He has since had side effects linked to that drug, and if not that drug, then when he was held down and injected with Ativan.” “When I looked up Olanzapine and the side effects, the side effects include ticks and uncontrolled movements with the neck and head which [BRM] had never expressed. [BRM} had never shown any kind of those kind of behaviours until after that time period.” [ 63 ] Father further described his approach with BRM which he advocates rather than the use of drugs.

He described working with an “Experimental psychologist who had a lifetime of knowledge and experience in dealing with maladaptive behaviours and how to modify and correct behaviours. ...His maladaptive behaviours were not that of a need for drugs, he needed love, consistency, and support with behavioural techniques to modify his behaviour.” [ 64 ] Father went on to describe concerns with a lack of stability, moving, many daycares and schools and Mother’s hatred of Father as being the basis of BRM’s “maladaptive behaviour.” He also accused Mother of giving positive reinforcement to bad behaviours.

He described his view of the pain BRM has been through, that he had a negative view of his life, that he did not want to feel the pain. “Mother would put BRM in the middle of the conflict rather than dealing with Father. Conflict around BRM at a young age created a distortion with his learning. He has an unhealthy perspective on what healthy boundaries are and how people are supposed to behave towards each other. He learned to be an angry and defiant boy. He learned conflict because he was in conflict.

He needed love and empathy and guidance.” [ 65 ] Father’s testimony then reverted to describing that BRM had been in his full-time care from March 2021 until July due to Mother having suffered from an overdose of drugs – a period Mother had described as having personal problems. When Mother was given access on July 8 through her father, that was when he was detained by Mother and not returned for Father’s parenting time.

Father then did not see BRM until the August 18 court date. [ 66 ] Father’s evidence then concluded with a description of the period from November to January outlining positive parenting experiences, positives in BRM’s life, including his art, and his passion for crystals, interspersed with comments about how the interactions at the court house in November resulted in injury which interfered with his ability to participate.

Relevant law: Material Change: [ 67 ] These sections regarding the law to be applied are essentially repeats of earlier decisions which I have written in the area of changing established parenting orders and the law regarding parenting. [ 68 ] Section 34 (3) of the Family Law Act , S.A. 2003, c.

F-4.5 (“ FLA ”) outlines the test for variations to a parenting order. “34(3) Before the court makes a variation order in respect of a parenting order, the court shall satisfy itself that a change in the needs or circumstances the child has occurred since the making of the parenting order or the last variation order made in respect of that order and in making the variation order, the court shall consider only the best interests of the child, as required by

section 18 and as determined by reference to that change.” [ 69 ] To vary a Parenting Order, there is a two-part test; first, there must be a change in the needs or the circumstances of the child. Second, if the change in circumstances has been met the court must consider only the best interests of the child as set out in

section 18 of the FLA to determine if the Parenting Order should be varied. [ 70 ] SB v WPJ , 2008 ABQB 239 provides some guidance here. Mr. Justice Clackson, starting at paragraph 12 and subsequent, states:

“[12] Patently, the change which must be shown has a temporal component. It must have developed or occurred after the original orderas amended. In this case, that means the change, if any, must have developed after the spring of 2007 which is the last time the presentorder was varied. [13] It is also important to recognize that it is the children who are the focus of the analysis.

The parties’ lives may have changedand that can, of course, have an impact on their children’s lives, but it is change in the needs or circumstances of the children that is thefocus of the inquiry. [14] The applicable issues may be summarized as follows: 1. has there been a change in the needs or circumstances of the children and/or the ability of the parents to meet the needs of thechildren since spring of 2007; 2. has that change materially affected the children; 3. was the change either not foreseen or could not have been reasonably contemplated by Judge Koshman; 4. what order should be made in the best interests of the children. [15] Before moving to address those issues, it seems to me that something needs to be said about this process and the flood of thiskind of application before the Courts. [16] It is important to recognize that simple change is not sufficient.

Significant or material change is necessary. It is alsoimportant to recognize that most parenting and contact orders are an irritant to both parents. In this imperfect world, neither parent maybe happy with their parenting time or the terms of its exercise. In those circumstances, there is considerable incentive to try and get abetter deal. However, the Court must be vigilant to protect against back door appeals. [17] There are instances, in applications such as this, where the order in place seems unusual or even unfair and may not be theorder I would have made had I heard the matter, originally.

That is not the test. I must approach the existing order with deference. I mustpresume it to be just and valid. To the extent that I do otherwise, I do the litigants and the Court a disservice.” [71] In that case, Clackson, J. found a change in circumstance because the father attempted to undermine the children’s relationshipwith their mother, and his behaviour, in fact, accomplished this.

The children’s circumstances changed because their relationship withtheir mother had changed as a result of the father’s attitude and behaviour. [72] The threshold issue of “material change” in a parenting order variation has also been assessed by the Supreme Court ofCanada in Gordon v Goertz, (SCC), [1996] 2 SCR 27, 1996 CanL11 191 in the legislative context of the Divorce Act,RSC 1985, c.3 (2nd Supp) (the “Divorce Act”) that also requires a material change in circumstances of the child before custody order canbe varied.

In paragraph 13 they set out the applicable test as: “[13] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a changein the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) whichmaterially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge whomade the initial order.” [73] While the Divorce Act does not apply to our matter, the concept is similarly applied and judicial

interpretation of the same isapplicable. Alberta courts have applied the material change test from Gordon v Goertz to matters under the FLA: see, for example,Gordon v Towell, 2010 ABQB 396 , 2010 ABQ B396 at paragraphs 22 and 23: “[21] Although Gordon is a divorce case, Alberta cases dealing with the variation of a parenting order governed by the Family Law Actapply Gordon as well. In the cases reviewed there has been no mention that the difference in the wording between s. 17 (5) of theDivorce Act and s. 34 (3) of the Family Law Act is meaningful. The Court noted in T.S. v.

A.V.T., 2008 ABQB 185 that with respect tothe requirement of change in circumstance, the law interpreting the language in the Divorce Act applies equally to the Family Law Act. [22] When it comes to the second step of the Gordon inquiry, Alberta Courts generally either use only the criteria in s. 18 of theFamily Law Act, or the s. 18 criteria in addition to the Gordon criteria to determine the best interests of the child. The Alberta Court ofAppeal found the guidelines in Gordon helpful in determining the best interests of the children in the 2006 mobility case of MacPhail v.Karasek, 2006 ABCA 238. In Adams v.

Wyatt, 2007 ABQB 667, having found a material change, the Court considered the best interestsof the child by following the analysis required under the Family Law Act. The Court did also consider the Gordon criteria noted inMacPhail, specifically the child’s relationship with the caregiving parent.” [74] In this circumstance, much of the evidence focussed on matters which were heard in the original trial. Mother’s mental health,drug and alcohol use and what BRM had been subjected to in her care had all been considered.

Mother did have an apparent relapse and amedical episode which disrupted the ordered parenting process. The parents managed to handle that period, with Father assumingprimary parenting. Mother disrupted that when she then, rather than reverting to the shared parenting model, assumed full parenting,without agreement or acquiescence of Father, until the Court re-established the Court Order via the August 18 Order. [75] None of the above focussed on BRM or any changes in his life.

Rather, it essentially was the parents dealing with Mother’sissues – and then, due to the nature of their relationship, needing the Court assistance to move them away from “self-help” remedies andback to a more regular process, by court order or agreement. [76] Father’s life changed as well. It is the Court’s observation that he has become much more involved in, perhaps described as“devout” about his belief system.

That could be seen as a change relevant to BRM, however in so far as parenting, while it is possible hehas become stricter in his views and application of his beliefs, again it is not essentially different where BRM is concerned.

[ 77 ] Father has consistently maintained his opposition to the use of pharmaceutical therapies for BRM and has maintained his belief that behavioural therapies are the best way forward to deal with what he now describes as BRM’s “maladaptive behaviours”.

The need for BRM to obtain counselling to deal with anxiety, ADHD, and potentially other emotional and psychological issues are not material changes requiring a review of the Parenting Order as those matters can be dealt with under the existing parenting regime in terms of obtaining treatment and counselling, however, they may be relevant to consider in terms of whether the parenting regime itself contributes to those issues. [ 78 ] It is my view that the test of “material change” has been met.

With the failure of the parents to be able to make exchanges and parent without involving the child in conflict, the child’s need for counselling, and most particularly, the health and behavioural challenges of BRM it is clear that we need to revisit the Parenting Order to determine whether and under what circumstances a shared parenting model can continue.

Given the behaviours of both parents, and particularly given the failure of Father to observe the Court Orders previously granted is it possible to create a parenting model which still includes Father? [ 79 ] There are extreme challenges to be met in this matter. It may be that day-to-day parenting will have to revert to one parent with parenting time defined for the other parent. That will have to be determined at trial if it comes to that. In the interim I am ordering that Mother have parenting until July 5, with Father to have access as appropriate and delineated in the Order.

This will balance the time inappropriately taken by Father in contravention of the earlier Orders. It will provide Mother with the opportunity to develop a working parenting relationship with BRM and an opportunity to demonstrate an ability to parent a child with significant behavioural disorders. Best Interests of the Child: [ 80 ] It is then appropriate to determine “what is in the best interests of the child?” at this point in time and look forward. [ 81 ] The FLA section 18 (1) sets out significant factors relating to that determination. Included are determinations with respect to: 18(1)(

a) Ensuring the greatest possible protection of the child’s physical, psychological and emotional safety (

b) Consider all the child’s needs and circumstances including (

i) the child’s physical, psychological and emotional needs including the child’s need for stability taking into consideration the child’s age and stage of development, (ii) history of care for the child, (iii) the child’s cultural, linguistic, religious and spiritual upbringing bringing and heritage, (iv) the child’s views and preferences , to the extent it is possible to ascertain them (

v) any plans proposed for the child’s care and upbringing, (vi) any family violence, ... (vii) the nature, strength and stability of the relationship (

A) between the child and each person residing the child’s household or other significant person in the child’s life and (

B) between the child and each person in respect of whom an order would apply, (viii) the ability and willingness of each person in respect of whom an order under this Part would apply to (

A) care for and meet the needs of the child and (

B) communicate and cooperate on issues affecting the child (ix) taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian and (

x) the ability and willingness of each guardian a proposed guard exercise the powers responsibilities and entitlements of guardianship” Greatest possible protection of the child’s physical, psychological, and emotional safety [ 82 ] In the case at hand, we clearly have a child with two parents in his life who love and care for him. Both parents are able to meet the physical needs of the child. [ 83 ] As is often the case, there is a concern with respect to the willingness of each parent to communicate and cooperate on issues

affecting the child. This is a significant concern here and will be addressed fully below. [84] Obviously, Mother wants BRM to live with her – but this is about what is in the best interest of the child, not the parents.There is no presumption in favour of the either parent. In AE v TE, 2017 ABQB 449 (“AE”) Renke, J summarizes this at par. 53: “[53] There is no presumption in favour of the “status quo”: Botticelli v Botticelli, 2009 ABQB 556 , Veit, J at paras 17-21.

Inparticular there is no presumption in favour of the “custodial” parent: DM v JS, 2016 ABQB 268 , Ross, J at para 22, aff’d, subnom MacElheren v Skillings, 2016 ABCA 346 ; Gordon v Goertz at para 49 and se para 44: 44 Fifthly and most importantly, a presumption in favour of the custodial parent has the potential to impair the inquiry into the bestinterests of the child. This inquiry should not be undertaken with a mindset that defaults in favour of a preordained outcome absentpersuasion to the contrary. It may be that in most cases the opinion of the custodial parent will reflect the best interests of the child.

Insuch cases, the presumption might do no harm. But Parliament did not entrust the court with the best interests of most children; itentrusted the court with the best interests of the particular child whose custody arrangements fall to be determined.” [85] Under the current Order there is a shared parenting model. That has not been followed by the parties. In on instance, for goodreason, BRM stayed with Father while Mother took care of her own health issues. That mad sense. Parents should be flexible, even in acourt ordered parenting model, to make decisions together in the child’s interest.

In this case Mother had to deal with her issues. It wasbetter that BRM be with Father during that period. There is no need to come back to court to amend the order where two parents agree.Such agreements should be in writing where possible to avoid later problems. That was not the case here – and there were laterproblems. [86] When Father did not return BRM to the shared parenting regime, Mother then took self help remedies inappropriately. Fatherthen later took his own self-help steps to disrupt the parenting regime without agreement.

It is the result of these actions by both parentsthat we are now here. [87] The most significant issue however, is BRM’s mental and emotional state. Father has embarked on a behavioural approach. Mother has consulted health professionals. She has not engaged in a medication-assisted approach, primarily because on a sharedparenting model it is clear that Father would not follow a prescribed medication protocol. [88] One of the benefits of this Order is to provide Mother the time and space to determine whether she has the ability to deal withBRM’s behavioural disorders.

If not, what is the appropriate way forward for BRM. Is there an appropriate behavioural model whichboth parents can employ successfully? Does there need to be more formal medical diagnosis and treatment? Does that treatment need toinvolve medications? These questions have been deferred to be addressed on an interim basis on our return July 5, and to determinewhether this needs to proceed to a full trial with those issues at the core. Children’s age and stage of development; History of care for the child; Children’s views and preferences [89] BRM will be 10 years old in September.

His history of care has been chaotic to say the least. It is quite possible to view thechaotic parenting, the episodes in Mother’s life, and the nature of Father’s life choices to have had a major impact on the behaviouralissues BRM exhibits. [90] Unfortunately, primarily due to Father’s interference, Counsel for BRM has not been able to be of great assistance. BRM hasrefused to see or consult counsel leaving us with no independent voice of the child.

The current Interim Order makes it clear that Fathermust remove his obstruction and that both parents have an obligation to ensure that BRM can have his voice heard through his counsel. Cultural, linguistic, religious, and spiritual upbringing; Family violence: [91] The cultural, linguistic, religious, and spiritual upbringing and heritage and the issue of family violence are potential factorshere.

There are no indications of family violence to be considered, other than the very sad demonstration of disrespect by Mother andFather to each other at exchanges and otherwise. [92] Father is entitled to hold his beliefs and to adhere to whatever religion or value structure he chooses. He is not free to imposethose beliefs on others, and, if he is to share in the parenting of BRM, he must understand that BRM will at some point choose his owndirection. In his childhood and youth BRM is entitled to be raised understanding there are different approaches to beliefs, values, andlifestyles.

What both parents need to exhibit to BRM are value systems which teach him dignity and respect for others in our society andcommunity, and the need to respect other people’s space and property. In other words – each parent can certainly teach their childrenabout their own beliefs and values – but BRM must learn that he lives in community, whether at school or elsewhere and must adhere tothe rules of behaviour. That can only come from parents demonstrating and exhibiting those behaviours, and from appropriate mentalhealth and behavioural support.

Ability and willingness of each person in respect of whom an order would apply to care for and meet the needs of the child and communicate and cooperate on issues affecting the child. [93] It is clear that both Mother and Father love BRM and are capable of caring for and meeting his needs.

It is also clear thatthey have considerable difficulty in putting aside their own interests to show BRM that they can treat each other with dignity and respect.In the normal course, it would be appropriate to look to the implementation of a “maximum contact” concept where there are two capableparents willing and wanting to be in a child’s life.

However, in this case, there are interceding issues that indicate that, while BRMshould have his both parents in his life – the shared parenting regime will have to be revisited if this one final attempt to establish anappropriate parenting model which both parents will agree to work within in BRM’s best interest is not honoured. Decision

[ 94 ] We have a young man of soon to be 10 years of age, represented by counsel but not providing a clear voice and interest in engaging in where he is going to live and how he wishes to share his time with each parent. The desires and wishes of the child should be considered but are not definitive in determining where and with whom the child lives. We need to be able to have an informed voice of the child from his counsel. [ 95 ] Family law is predicated on the view that a child deserves to have two capable loving parents in their life if that is at all possible.

It is to the benefit of the child if that can be managed in a way to provide the maximum amount of time with each parent so that there can be opportunities for guidance and parenting from both, not major parenting from one and a fun weekend with the other. [ 96 ] It is first and most important to address safety and security. In this case, there has not been a question of drugs, alcohol, physical violence involving the child, or any of the disqualifying factors which drive the decision toward eliminated, reduced, or supervised parenting.

Mother has had issues in the past and is dealing with them. [ 97 ] For the ideal to work logistics are important – are both houses appropriate, can school be attended easily from both homes, etc.? [ 98 ] Next, communication is important. Can the parties communicate in a manner necessary to provide cooperative, collaborative parenting?

What tools, devices, and understandings can we put in place to reduce parental discord and demonstrate dignity and respect? [ 99 ] At the root of it all – in order for it to work, we need to have parents who demonstrate meaningfully that they want to be parents, that they care for and love their child, and that they can rise above the pettiness of any lingering anger or feelings they may have about their failed relationship with the other parent, their disagreement or disrespect of the other parents previous lifestyle choices or current belief systems, to treat the other parent with dignity and respect in the interests of the child.

The child never deserves to become part of the fight. It never demonstrates love, respect, or care for a child when the parent is treated badly whether in the child’s presence or otherwise.

Notwithstanding the airing of these issues at the various hearings, it appears the parents have continued down the wrong path – invoking Emergency Protection Orders and other devices to interfere with the parenting orders. [ 100 ] Both parents have played an important role in BRM’s life [ 101 ] By providing the interim order, to be reviewed July 5, it is anticipated that Mother will have the opportunity to make up for the time she has lost due to Father’s actins, but more importantly, will have the uninterrupted time to create a behavioural model with BRM [ 102 ] It is not an invitation for Mother to exclude Father.

She owes it to BRM to start treating Father with dignity and respect, setting aside personal feelings for the benefit of the child. If that can be achieved, and if Father can reciprocate the shared parenting time might be continued. BRM’s wishes would undoubtedly play an important role in that decision. One would hope that it would be a decision made by adults understanding that it was now in BRM’s best interest.

Unfortunately, probably the biggest challenge in achieving that model will be a determination as to the best form of “treatment” for BRM’s “maladaptive behaviour” as Father styles it. [ 103 ] In result – I have ordered that BRM remain with Mother until July 5. The parties shall return to this court on July 5 for a review of the intervening period to determine what progress has been made and to set nest steps.

The time period that BRM has been and will be in Mother’s care to July 5 will provide the “make-up time” due to previous non-adherence to the court orders. [ 104 ] As the Order provides the parties shall file update statements prior to July 5 outlining any issues and information that is relevant to B’M's schooling, behavioral issues and parenting to that date.

They will also be prepared to discuss next steps, including, if trial is necessary a list of proposed witnesses, any documents which will be necessary, and how they propose to bring forward the necessary medical information to support their positions with respect to BRM’s ongoing treatment – if that is in dispute. [ 105 ] The Court Order dated March 9, 2023 and filed May 29, 2023 in this matter results from these reasons. Heard at the City of Edmonton, on the 6 th day of February and the 9th day of March, 2023. Dated at the City of Edmonton, Alberta this 30 th day of June, 2023.

David G Hancock, A Justice of the Alberta Court of Justice

Appearances: G. Hammermeister for the Applicant Self-represented for the Respondent E. Turner for the Child