CD v MD, 2023 ABCJ 229

In the Alberta Court of Justice Citation: CD v MD, 2023 ABCJ 229 Date: 20231114 Docket: FF903018917 Registry: Edmonton Between: CD Applicant - and - MD Respondent Reasons for Decision of the Honourable Justice G.B.N. Ho I.

INTRODUCTION [ 1 ] On March 14, 2023, CD (“the Father”) filed an application to vary a “Consent Final Parenting Order” granted on June 2, 2022 by Justice Linton, (“the Consent Final Parenting Order”) in relation to the Children: BD1, born April 2016, and BD2, born February 2018. [ 2 ] The Consent Final Parenting Order provided the Father with shared week on/week off parenting of the Children, together with the Mother, MD. [ 3 ] The Father testified that he thought the order granted on June 2, 2022 was a consent interim order.

He was not in Court on the day it was granted and never received a copy of the order from either his lawyer or the Court. It is clear that the order was granted as a final order and that his lawyer appeared on his behalf to grant the necessary consent. It is reasonable to expect CD to have pursued getting a copy of the order from either his lawyer or the Court.

His perception that the order was interim does not alter the fact that it was granted as a final order. [ 4 ] Section 34(3) of the Family Law Act states: 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 of 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. [ 5 ] Having regard to s.34(3): 1. I cannot make a variation of the Consent Final Parenting Order unless I am satisfied that there has been a change in the needs or

circumstances of the Children since the granting of that order. 2. I must only consider the best interests of the Children as required by s.18, and 3. I must determine the best interests of the Children by referencing the change in the needs or circumstances of the Children. II. ISSUES 1. Has there been a change in the needs or circumstances of the Children? 2. If so, what is in the best interests of the Children by referencing any change? III. ANALYSIS A. Material Change [ 6 ] A significant amount of evidence was introduced on behalf of the Father which pre-dated the Consent Final Parenting Order.

Counsel for the Father submitted that evidence that pre-dated the Consent Final Parenting Order could be considered because the Father was not aware of the existence of that evidence until after the Consent Final Parenting Order was granted. [ 7 ] The Alberta Court of Appeal discussed the rationale for s.34(3), in relation to consent orders, in Cheng v Li , 2015 ABCA 322 at para. 24-27 : 24 Furthermore when the consent order was signed, it is presumed that the court had discharged its duty under the Act to ensure that the order met the best interests of the child: Hearn v Hearn , 2004 ABQB 75 , 352 AR 260 at para 38 . 25 For the mother to now suggest that the 2012 Consent Variation Order was not in the best interests of the child is to essentially collaterally attack that order, without having sought to appeal it and after having received the benefit of it. 26 Moreover, in the case of a consent order the court presumes that when parties are in agreement they usually know what is best for the family, and what is in the best interests of their children.

The parties must keep their promises once they are made. If a party has compromised one advantage to achieve another, that party should not lightly be allowed to resile from the bargain freely made: Hearn v Hearn , at para 31 . 27 There are limits to permitting any perceived change to result in a change to a custody order entered into by the consent of the parents. Endless relitigation of custody issues serves the interests of no one, including the children involved.

The utility of settlements respecting custody and access would be considerably diminished if parties could agree to a consent order and then be permitted to resile from it without meeting a considerable threshold test of change in circumstances in the condition, means, needs or circumstances of the child or the ability of a parent to meet the needs of a child which materially affects the child and which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.

Cheng v Li , [2015] AJ No 1179, 2015 ABCA 322 , 2015 CarswellAlta 2021, 260 ACWS (3d) 304, 69 RFL (7th) 306 [ 8 ] The Alberta Court of Appeal elaborated on what constitutes a change in the needs or circumstances of a child in AR v JU , 2021 ABCA 337 at para 66 : 66 A "change in the needs or circumstances of the child" is not established by showing that there has been a significant event or events in the time period prior to the hearing.

The fact that there might have been a significant set of events affecting a parent, howsoever long that might have lasted, is not the same thing as a material change in the ongoing means, needs or circumstances of the children. The material change must affect the children, not just the parents. It must also be a real "change" in the sense of affecting how the lives of the children will unfold from the point of the change and thereafter that was not anticipated when the earlier order or judgment was made.

A temporary or transitional adjustment in the lives of the children is not necessarily a "change" for these purposes. AR v JU , [2021] AJ No 1358, 2021 ABCA 337 [ 9 ] These cases establish the following: 1. The original consent parenting order must be presumed to be correct and in the best interests of the child. 2. A change in the needs or circumstances of the child is not established by showing that there has been a significant event or events in the time period prior to the hearing of the variation application. 3.

The material change must be a change in the ongoing means, needs or circumstances of the child. 4. The material change must affect the child not just the parents. 5. It must be a change that affects how the life of the child will unfold from the point of the change and thereafter.

6. It must not have been anticipated when the earlier order was made. 7.

A temporary or transitional adjustment in the life of the child is not necessarily sufficient to constitute a change. [ 10 ] In view of these Alberta Court of Appeal decisions, I reject the claim by counsel for the Father that a change can consist of events that pre-dated the Consent Final Parenting Order if the Father was not aware of those events until after the order was granted. [ 11 ] In my view, there are three (3) changes after the granting of the Consent Final Parenting Order that satisfy the criteria enunciated by the Alberta Court of Appeal, and constitute material changes in the needs or circumstances of the Children: 1.

The Mother’s relationship with TP; 2. The Mother’s behaviour at U-15 hockey games, after the granting of the Consent Final Parenting Order; 3. The Mother's posts on social media after the Consent Final Parenting Order showing her consuming or purporting to consume marijuana. 1. The Mother’s Relationship with TP [ 12 ] The Mother met TP in January, 2023 and commenced a dating relationship with him in February, 2023. This relationship could not have been anticipated in June, 2022. [ 13 ] The Father heard concerns about TP and believed him to be a risk to the Children.

He reached out to the Mother on February 17, 2023 to communicate his concerns to her. She became angry and blocked further communication from him. The Mother claims that she only blocked phone and social media communication but not email communication. For reasons that I will provide later, I accept the Father’s testimony in preference to the Mother’s. (

a) Evidence of JL [ 14 ] JL testified that she was with TP for three (3) years and they had a child together. JL also had three (3) other children from a prior relationship. She testified that TP engaged in domestic violence towards her on many occasions, particularly when he came home drunk and “forced sex” on her “lots of times”. He also tried to isolate her by taking her phone away from her, and preventing her form associating with other people. TP had 2 children from a prior relationship with NW.

JL testified that when TP had parenting time of these two (2) children, he would spank the younger one who is now 5 years old on her “bare bum”, and that the spanking would leave a mark for a long time. She stated that when the younger child “pooped her pants” and didn’t tell him, he would spank her. On one occasion, he washed her off with a “freezing cold hose”. [ 15 ] JL testified that she has a 12-year-old daughter from a prior relationship, and TP “made her feel uncomfortable a lot”. JL stated that her daughter begged her not to leave her alone with TP.

JL described TP as “touchy-feely” and stated that he grabbed the butt of her older son multiple times. He ran away briefly one time after TP, who had been drinking, put him in a headlock. On another occasion, TP grabbed him by his collar and held him against the wall. TP also stole items and hid them, blaming that child, until TP was found out.

Eventually, because of the older son’s concerns about TP, he moved out to live with his father until TP moved out. [ 16 ] JL also testified that TP would tell sexual jokes in front of the children. [ 17 ] JL testified that TP consumed alcohol daily, “to the point where he would drive his truck home, and then pass out in the driveway”.

He started drinking when he woke up and continued throughout the day. [ 18 ] She stated that TP used drugs, including cocaine, and, on one occasion, was in an accident after drinking while impaired. [ 19 ] JL described an incident in October, 2022 when TP was intoxicated and drove home at 5:30pm with the daughters he had with NW. When he arrived home, he passed out with the girls in the vehicle. His daughters were 4 and 5 years old at the time.

The incident was traumatizing for the children, who thought TP had died. [ 20 ] JL testified that she obtained an EPO against TP on January 23, 2023, and that TP breached the order. [ 21 ] JL described an incident in January, 2023 when she asked a neighbour, who was a carpenter, to fix the locks on their house so that they would lock properly. A few days later, JL went to the neighbour’s house to pay him for his work. TP showed up in a fit of jealousy and kicked the neighbour’s door. When the neighbour opened the door, TP tried to fight him.

After the neighbour hid, TP went to his truck, backed it up and rammed the back of the vehicle which he jointly owned with JL. TP was arrested and charged. [ 22 ] Eventually, the EPO was converted into a mutual restraining order by the Court of King’s Bench. It is notable that, subject to any parenting order, TP was restrained from contact with four children, TP’s child with JL, as well as JL’s children from an earlier relationship. There is no parenting order for the child which TP and JL had together. (

b) Evidence of NW [ 23 ] NW and TP lived together from 2014 to 2018 and have two children, who are now 5 and 6 years old. Following a trial on June 22, 2023, before Justice Lloyd, TP was granted supervised parenting time with the children, a maximum of two weekends per month. [ 24 ] NW testified about the incident in October, 2022, referred to in JL’s testimony, when TP drove, while intoxicated, with NW’s two children in the vehicle.

[ 25 ] NW testified that, following the incident, the children had an irrational fear of the dark, and that they were afraid of being left alone in a vehicle, even for a short time. [ 26 ] NW testified that, during the time they were together, TP was drunk every day. She estimated that he had a minimum of 10-15 drinks each day, and he was generally upset when he was drinking. [ 27 ] She stated that TP exposed her children to foul language and inappropriate conduct. He verbally abused her and called her the “B” word and the “C” word in front of the children.

She was concerned about the behaviour of her children after they spent time with TP. They would come home and use foul language, which she does not use. She stated that, on one occasion, after being in TP’s care, one of the children stated to a male guest in her home, “You’re a boy and I’m a girl and you put your penis in my bum”. [ 28 ] TP was very physically violent, especially after drinking a lot. He abused animals. He threatened to shoot her dog, and he punched animals, including horses. [ 29 ] He was physically violent towards her once a week after consuming copious amounts of alcohol.

On one occasion, she phoned the police when he beat her and pinned her between the bed and the crib. He elbowed her in the head and punched her on the back of the head. The children were at home during the incident. TP was charged with resisting arrest. [ 30 ] NW testified that she has been raped multiple times by TP. [ 31 ] Even after they separated, TP posted inappropriate things about her, including that she was “performing oral sex by the river”. (

c) Evidence of TP [ 32 ] TP testified that his outstanding charges consist of two assault charges and a refusal to provide a breathalyzer sample. He denied being charged with breaching the EPO against him. [ 33 ] He claimed that JL was having an affair with the neighbour, who is the complainant in the assault charges against TP. [ 34 ] He denied driving while intoxicated with the two children and passing out in the vehicle. [ 35 ] He denied being aware that NW was granted sole decision-making regarding their children. He denied being aware that the parenting time he was given was to be supervised.

He acknowledged that he was in custody for six days relating to JL’s allegations concerning his breaching the EPO against him. He denied spanking JL’s children on their bare bums. He claimed that JL’s son moved out of the house because of conflict with JL and not because of his abusive conduct. [ 36 ] He denied consuming cocaine, indicating that he gets drug-tested by providing a urine sample twice a month when he is working. [ 37 ] He denied domestic violence against JL or NW. [ 38 ] He denied the existence of any order that prohibits him from having contact with the child he had with JL.

He acknowledged posting on Facebook that NW is “more interested in sucking dick in the Ford truck than her kids”. He denied having contact with BD1 and BD2 in violation of the Interim Parenting Order. (

d) Assessment of Evidence [ 39 ] I find both NW and JL to be credible, compelling witnesses. Both witnesses gave their testimony in a straightforward way without embellishment. I note that NW asked Justice Lloyd to provide TP with supervised access, and that Justice Lloyd acceded to that request, despite Justice Lloyd’s inclination to not provide him with any access. [ 40 ] I find that TP was evasive and not credible. [ 41 ] He denied being charged with breaching the EPO yet testified that he spent six days in custody until he was granted bail.

He claimed he could contact the child he had with JL, despite the mutual restraining order prohibiting him from having contact. There is no parenting order granting him contact with that child. I note that in the parenting proceedings between NW and TP, Justice Lloyd found NW and JL to be credible, and TP to be evasive and not credible. [ 42 ] I found that CD gave his evidence in a straightforward manner without inconsistencies. I accept his evidence that the Children in this matter told him that TP had been around them and had been at the Mother’s residence. 2.

The Mother’s behaviour at U-15 hockey games [ 43 ] EH testified on behalf of the Father. The Mother did not take issue with EH’s testimony and I found EH to be credible. She did not want to be in Court, but was responding to a Notice to Attend. [ 44 ] EH testified about inappropriate behaviour by the Mother at U-15 hockey games for her son from a prior relationship. She described the Mother’s behaviour to include:

“Loud yelling in the stands, banging on the glass, kicking the boards, standing up on the benches with her fist raised if her child was in an altercation... parents on the team apologizing to the other teams for her behaviour.” [ 45 ] EH formed the impression from the mother’s actions, behaviour and other observations that the Mother was not sober. This behaviour continued over a period of years but the last time was in March, 2023. [ 46 ] The Mother characterized her behaviours, in her testimony, as “normal hockey mom behaviour”. 3.

The Mother’s Alcohol Use [ 47 ] The Mother claims that she began a wellness program in January, 2023. She testified that she only has one beer a week and smokes marijuana only at bedtime. The Mother’s claim about her use of substances is inconsistent with her banking statements (Exhibit 29) indicating substantial purchases at liquor and cannabis stores from January to March, 2023. [ 48 ] In view of the frequent purchases and the nature of these businesses, I reject her claim that she was purchasing items other than alcohol or marijuana. I also reject the claim that she was purchasing for someone else.

If she was, that may constitute trafficking. [ 49 ] I also give no weight to her hair follicle drug test. She manipulated the results of the drug test by her delay in taking it and by colouring her hair. [ 50 ] Joseph Blahun testified on behalf of the Father about an incident on May 27, 2023 at approximately 2:30 – 3:00am. [ 51 ] Mr. Blahun responded to a request from his son, Darren, to help because he was in a vehicle with a friend in the ditch. That friend was MD. When Mr.

Blahun arrived at the scene, he saw a vehicle 150 feet inside a field, which appeared to have gone through a fence, and into a creek. [ 52 ] MD was in the driver’s seat. Mr. Blahun smelled the odour of alcohol. It was “reeking”. [ 53 ] MD denied in her testimony that she was driving. I do not believe her. She was in the driver’s seat. The car belonged to TP. Mr. Blahun’s son did not have a driver’s license due to failure to pay child support. 4.

The Mother’s Social Media Posts [ 54 ] The Mother posted pictures on social media of herself apparently smoking marijuana in spring, 2023. [ 55 ] Although smoking marijuana is legal for adults, it is not legal for children. The Mother’s posts (Exhibit 26) were intended to be humorous and to characterize smoking marijuana as “cool”. These posts could easily be discovered by children, including BD1 and BD2 on some future date. These posts do not reflect responsible parenting. IV.

CREDIBILITY [ 56 ] I found the Father to be a credible witness who is concerned about his Children, including being willing to take on additional parenting time when the Mother had other priorities. [ 57 ] I found the Mother not to be credible. After the Father filed his claim to vary the Consent Final Parenting Order on March 14, 2023, the Mother responded immediately by filing an EPO application.

The claim was rejected. [ 58 ] Based on the evidence I have heard, the Mother’s EPO application was frivolous and an apparent attempt to abuse the court system to gain a tactical advantage. [ 59 ] I note that the Mother’s Response was not filed until March 27, 2023. In her affidavit, the Mother stated, “The Father verbally and physically assaulted me throughout our marriage”. In her testimony, the only assault alleged was in March, 2015.

I accept the Father’s explanation concerning the 2015 incident, that the Mother was intoxicated, and that when he attempted to restrain her, they fell backwards onto the floor causing a fracture in her neck. I am satisfied it was an accident. The Father testified that this incident has never been raised previously by the Mother in court proceedings until her March 27, 2023 Response. V. Best Interests of the Children [ 60 ] I am required by s.18 of the Family Law Act to consider only the best interests of the Children.

In doing so, I must ensure the greatest possible protection of the Children’s physical, psychological and emotional safety, and consider the needs and circumstances of the Children, including the following: 18

(2) In determining what is in the best interests of a child, the court shall (

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

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) the history of care for the child,

(iii) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, (iv) the child’s views and preferences, to the extent that it is appropriate to ascertain them, (

v) any plans proposed for the child’s care and upbringing, (vi) any family violence, including its impact on (

A) the safety of the child and other family and household members, (

B) the child’s general well-being, (

C) the ability of the person who engaged in the family violence to care for and meet the needs of the child, and (

D) the appropriateness of making an order that would require the guardians to co-operate on issues affecting the child, (vii) the nature, strength and stability of the relationship (

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

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

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

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

x) the ability and willingness of each guardian or proposed guardian to exercise thepowers, responsibilities and entitlements of guardianship, and (xi) any civil or criminal proceedings that are relevant to the safety or well-being of thechild.

(3) In this section, “family violence” includes behaviour by a family or household member causing or attempting to cause physical harmto the child or another family or household member, including forced confinement or sexual abuse, or causing the child or another familyor household member to reasonably fear for his or her safety or that of another person, but does not include (

a) the use of force against a child as a means of correction by a guardian or person who has the care and control of the child if the forcedoes not exceed what is reasonable under the circumstances, or (

b) acts of self-protection or protection of another person.

(4) For the purpose of subsection (2)(b)(vi), the presence of family violence is to be established on a balance of probabilities. [61] This is a high-conflict relationship. The Parents are not either willing or able to co-parent the Children in their best interests.After the Father raised legitimate concerns about TP to the Mother, the Mother blocked further communication with the Father andrefused to use a co-parenting communication app. The Father has been mainly responsible for the medical and dental needs of theChildren, including BD1’s speech pathologist.

The Father has been diligent in taking the Children to extra-curricular activities. TheMother has refused to take the Children to extra-curricular activities on her parenting time.

Furthermore, she has unreasonably refused toprovide her consent for BD1 to have counselling. [62] In Richter v Richter, 2005 ABCA 165, at para 11, the Alberta Court of Appeal held that: “as a general proposition, joint custody and shared parenting arrangements ought not to be ordered where the parents are in substantialconflict with each other, and certainly not before trial especially when there is also significant disagreement on the evidence. The bestinterests of a child are not well served by imposing regimes which invite continued court applications on all matters, big and small.

Asthe British Columbia Court of Appeal noted in Stewart v. Stewart (1994), (BC CA), 2 R.F.L. (4th) 53 at para. 9(B.C.C.A.), citing Kruger v. Kruger (1979), (ON CA), 11 R.F.L. (2d) 52 at p. 79 (Ont. C.A.): [Joint custody] requires a willingness by both parents to work together to ensure the success of the arrangement. Such a willingness mustbe sincere and genuine” Richter v Richter, [2005] AJ No 616, 2005 ABCA 165, 371 AR 1, 20 RFL (6th) 396, 139 ACWS (3d) 698, 2005 CarswellAlta 1530 [63] I make the following findings regarding TP on a balance of probabilities:

1. TP abuses alcohol to a significant degree on a daily basis; 2. Due to his substance abuse and anger issues, TP poses a risk to others whenever he uses alcohol; 3. TP has engaged in domestic violence, including (

a) sexually assaulting JL and NW on multiple occasions, (

b) verbal abuse towards JL, NW and their children, (

c) physical abuse of JL, NW, JL’s son and NW’s youngest child from a previous relationship, as well as animals; 4. TP used inappropriate language in front of children, including language with sexual content that is inappropriate for children. [ 64 ] There is no evidence that the children have any relationship with TP. His presence creates a risk to their physical, emotional and psychological safety. [ 65 ] I am wary when allegations are made against the new partners of ex-partners. In the present case, however, I am satisfied that CD’s concerns about TP have been substantiated.

I accept CD’s evidence that the Mother has breached the Interim Parenting Order by allowing TP to continue to have contact with the Children. [ 66 ] I am of the opinion that TP is a significant risk to the physical, emotional and psychological safety of the Children. BD1 is non-verbal and cannot protect himself. BD2 is only 5 years old and cannot protect herself. [ 67 ] The Mother has minimized the concerns about TP, including the seriousness of the offences of which he has been convicted. [ 68 ] MD has the right to associate with TP and expose herself to the risks of being in a relationship with him.

She does not have the right to expose the children to the risk of physical, emotional and psychological harm from their having continued contact with TP. [ 69 ] I found that the Mother’s behaviours at U-15 hockey games, and her posting of photos apparently showing her smoking marijuana, to indicate a deficit in her ability to parent the Children, in contrast to the Father’s competent parenting. [ 70 ] The Mother’s behaviour at U-15 hockey games attended by children indicate a lack of ability to control her emotions and exercise self-discipline.

Consumption of alcohol at a children’s event to the point of loss of control, is not appropriate parenting behaviour. MD’s characterization of such behaviour as exhibiting the actions of a “hockey mom behaviour” shows that she does not understand her responsibilities as a parent and what constitutes appropriate behaviour in front of Children. [ 71 ] The Mother’s posting of photos glamorizing the use of marijuana, when its use remains illegal for children, is a further indication of her inability to exercise adequate parenting.

She either doesn’t understand or care that in the near future it may be possible for her children to access the photos. [ 72 ] The Father proposes that the Mother have parenting time on alternate weekends, Saturday and Sunday from 10:00am to 6:00pm, and Tuesdays and Thursdays after school until 7:00pm. The Mother would like to keep the existing week on/week off schedule. [ 73 ] I find the Father to be a capable parent. The Mother testified she has no safety concerns about the Father’s parenting. [ 74 ] The Mother would like to maintain her relationship with TP.

I accept her desire to do so, but, in providing TP with contact with the children, she has placed them at risk. In view of the risks that TP poses to the Children and the Mother’s parenting deficits, having regard to the best interests of the children, I am granting the Father day-to-day care of the Children, and granting the Mother parenting time every 2 nd weekend. In view of the conflicts that have taken place on exchanges, it is important to keep the number of exchanges to a minimum.

Furthermore, neither the Mother nor the Children should have contact with TP during the Mother’s parenting time. [ 75 ] The Father will have all decision-making for the Children on an exclusive basis. The Mother must provide 48-hours notice of any cancellation of her parenting time. Dated at the City of Edmonton, Alberta this 14 th day of November, 2023. G.B.N. Ho A Justice of the Alberta Court of Justice

Appearances: M. Murdoch for the Applicant M. Simon for the Respondent