Potts v Marschlik, 2023 ABKB 362

Court of King’s Bench of Alberta Citation: Potts v Marschlik, 2023 ABKB 362 Date: 20230616 Docket: FL01 35707 Registry: Calgary Between: Joshua Mitchell Robert Potts Plaintiff - and - Raven Robin Marschlik Defendant _______________________________________________________ Reasons for Decision of the Honourable Justice G.H. Poelman _______________________________________________________ I. Introduction [ 1 ] The main issue in this two-day

summary trial is what parenting time each of the parties should have with their child, W, now about five and a half years old. [ 2 ] Since their separation, W primarily has been in the care of Ms. Marschlik. Mr. Potts repeatedly has sought more parenting time. He now applies for primary care of W, with Ms. Marschlik to have specified parenting time; and in the alternative, equal shared

parenting of W. Ms. Marschlik asks permission to move with W from Rocky Mountain House to Calgary, retaining primary care of him. II. Procedural History [ 3 ] The court documents regarding parenting matters begin on April 20, 2021. Mr. Potts applied for an order to have unsupervised time with W, on the ground that there was no current order in place and Ms. Marshlik was refusing parenting time. There followed a consent order on September 2, 2021, pursuant to which daytime parenting was given to Mr. Potts on every other Saturday and Sunday to be supervised by a professional agency.

The matter was to return to court on September 28, 2021, and on that date, an order directed a domestic special. In the meantime, Mr. Potts was given unsupervised parenting time for six hours every Saturday with a supervising agency required to drive W back and forth. The cost of transportation was to be paid by Mr. Potts “in the first instance on a without prejudice basis.” [ 4 ] Ultimately, instead of a half-day special chambers hearing (initially scheduled for July 20, 2022) it was determined that viva voce evidence would be required.

Thus, by order of January 24, 2022, an oral hearing was scheduled for November 9 and 10, 2022. [ 5 ] An interim order was granted on February 4, 2022, awarding Mr. Potts parenting time during the days only on every other weekend, Fridays, Saturdays and Sundays. There was no requirement for third party transportation but a third party was required to be present at exchanges. [ 6 ] In early 2022, Ms. Marschlik indicated that she was planning to move with W to Calgary. Mr. Potts filed an application to prevent her move.

An interim order of April 25, 2022 stated, among other things, that “upon the court noting that an Oral Hearing was granted on January 24, 2022 . . . and upon the Applicant submitting that implicit in such Oral Hearing Order is that the status quo regarding the Child’s residence in Condor/Sylvan Lake and surrounding area be maintained pending determination of the Oral Hearing,” it was ordered that W’s residence remain “within Condor, Rocky Mountain House, Red Deer, Sylvan Lake, or surrounding area” and Ms.

Marschlik “shall not be permitted to change the Child’s residence.” [ 7 ] The November 2022 oral hearing did not proceed because one of the counsel was taken ill. Thus, it was rescheduled for April 13 and 14, 2023. In the meantime, a December 2, 2022 interim without prejudice consent order was granted, pursuant to which upon receipt of a negative fifteen-panel hair follicle drug test on Mr. Potts, Mr. Potts would have interim parenting time every other weekend from Friday morning until Sunday evening, with no requirement for a third party to be present at the exchanges. III. Evidence A.

Introduction [ 8 ] Pursuant to the January 24, 2022 oral hearing order, the evidence for the hearing was, on behalf of Mr. Potts, affidavits from him, a representative of Dynamic Testing Solutions, and a representative from the supervision and transportation agency he employed; and cross-examinations at the hearing on those affidavits. Ms. Marschlik’s evidence was to be an affidavit from her and cross- examination thereon. [ 9 ] In addition, brief read-ins from the discovery questioning of Ms. Marschlik were submitted on behalf of Mr. Potts. [ 10 ] Each party had submitted affidavits earlier in the proceedings.

There was recourse to those in the hearing for limited purposes, primarily impeachment on the basis of prior inconsistent statements. [ 11 ] In what follows, I initially summarize the evidence of each witness, with minimal comment. I conclude this part of my reasons with an assessment of the testimony of each witness who appeared in court. B. Mr. Potts 1. Affidavits [ 12 ] Mr. Potts and Ms. Marschlik knew each other for many years before they began dating in 2013 and living together in April 2017. Their only child, a son named W, was born in December 2017. He is now five years old.

They separated in April 2021. [ 13 ] Mr. Potts spent much time with W. In the mornings, he got up with him, changed his diaper, fed and dressed him. Ms. Marschlik cared for him during the day. After work, Mr. Potts was mainly responsible for cooking dinner and would spend time with W before his bedtime, including feeding, bedtime routine and singing songs. Ms. Marschlik pumped breastmilk so that the parties could be equally involved in feeding W.

On weekends, they equally parented W. [ 14 ] After living together in Calgary until fall 2019, they agreed to move to a rental acreage property in Condor, Alberta, close to a property on which Ms. Marschlik’s step-father, Randy Mottus, and brother lived. They wanted more children, a rural lifestyle and a chance to raise farm animals. [ 15 ] Ms. Marschlik had family members in Calgary, including her father and sister. At the time of the move, she was estranged from both of them for various reasons. [ 16 ] After the move to Condor, Mr.

Potts found a position as a millwright for Robert’s Mechanical, where he worked various rotating schedules at different jobsites, with extended periods at home when there was no work (25 days in November 2019, all of

December 2019 and November and December 2020). [ 17 ] When home, Mr. Potts contributed by shopping for groceries, cooking meals and equally parenting W. In addition to meals and bedtime routines, he took W for outdoor activities such as canoeing, fishing and building structures. On occasion, Ms. Marschlik was away for several days visiting others and Mr. Potts would have sole parenting responsibilities for W. [ 18 ] The relationship between the parties was often tumultuous. Mr. Potts attached as an example a series of text messages Ms.

Marschlik sent him on September 10, 2020, threatening to take herself and W out of Mr. Potts’ life and warning that soon W would forget all about him. [ 19 ] As W was getting older, Mr. Potts noticed that Ms. Marschlik’s anger and “put-downs” towards Mr. Potts began to affect W. He moved out in April 2021. [ 20 ] Initially, Mr. Potts saw W on his days off work but Ms. Marschlik then decided that his parenting time had to be supervised by her step-father. Ms. Marschlik controlled and limited his time to the point where all contact was cut off on August 6, 2021 and Mr. Potts was required to vacate Mr.

Mottus’s home immediately. Mr. Potts temporarily moved to a basement suite in Bentley, followed by a move on January 15, 2022 to his current home in Sylvan Lake – 20-25 minutes from the Condor acreage. [ 21 ] The parties consented to an order on September 2, 2021, with the term limited to September 28, 2021, giving Mr. Potts time with W on alternating weekends from 10:00 a.m. to 2:00 p.m. on each of Saturday and Sunday, on the condition that it be supervised. Mr. Potts agreed to this order only because he had not seen W for many weeks. On September 28, 2021, a further interim order was granted limiting Mr.

Potts’s time to six hours each Saturday on condition that a supervising agency transport W; and the parties were directed to book a half-day special chambers hearing. [ 22 ] Mr. Potts used a professional agency for transportation, but it limited what he could do with W because they were not able to go anywhere beyond walking distance of his home. Ms.

Marschlik refused requests to modify the meeting place to reduce expenses. [ 23 ] The special chambers hearing was scheduled for July 22, 2022, but on January 24, 2022, Nation J. directed an oral hearing for November 9 and 10, 2022. [ 24 ] A further interim order was granted on February 4, 2022 by de Wit J., which provided parenting every other Friday, Saturday and Sunday without overnight time. He directed a specified exchange location and removed the requirement for third-party transportation. [ 25 ] On February 4, 2022, Ms.

Marschlik represented that she would be moving to Calgary with W by the end of April 2022. Shortly thereafter, Mr. Potts brought an application which resulted in an April 21, 2022 order prohibiting Ms. Marschlik from relocating. In the meantime, she had moved with W from Condor to Rocky Mountain House without advising Mr. Potts. Rocky Mountain House is farther from Sylvan Lake than Condor. This resulted in W being in a car for about 4.5 hours every other Friday, Saturday and Sunday to get between the two homes. [ 26 ] Mr. Potts complains of “false and serious allegations” Ms.

Marschlik has made against him, such as the following:

a) She accuses him of having drug addictions. Mr. Potts testified that Ms. Marschlik and he used drugs recreationally together before W’s birth, including mushrooms. After W was born, they used mushrooms together and he observed Ms. Marschlik smoking marijuana multiple times a week. This is context for her allegations against Mr. Potts. The last time he tried a drug was October 31, 2020, while Ms. Marschlik and W were away, visiting in Kelowna. He has never been charged with driving infractions related to drugs or alcohol.

b) He has completed a number of drug tests to answer Ms. Marschlik’s allegations (July 20, 2021; November 22, 2021; and December 8, 2021). All results have been negative. He has offered to take more drug tests if paid for by Ms. Marschlik.

c) Ms. Marschlik has made false allegations of domestic violence. He denies all allegations of violence, but points out that Ms. Marschlik has often assaulted him in front of others, including W, and has made police reports alleging assault and sexual assault. [ 27 ] Mr. Potts states that Ms. Marschlik has not communicated with him directly since August 2021. She gives him no information and does not consult him on educational, daycare, health and medical matters.

She has registered W in daycare and school without his knowledge, and without giving his information as a guardian to the facilities. [ 28 ] On a number of occasions, Ms. Marschlik has denied Mr. Potts’s court-ordered parenting time: October 2, November 27 and December 25, 2021, and March 11 and May 6, 2022. [ 29 ] Mr.

Potts is employed as a quality control technician, working a seven-on/seven-off schedule. [ 30 ] If there is shared parenting with which this work would interfere, he has three other confirmed employment opportunities in the area which would enable him to work more regular hours at less pay. [ 31 ] Mr. Potts provided a parenting plan, some highlights of which are as follows:

a) He gives a colourful description of W’s personality, interests and accomplishments. It makes clear that Mr. Potts knows his son very well.

b) Their house is in Sylvan Lake, about 8 blocks away from the beach. They spend much time at the park, at the beach and in the water, skating, ice fishing and enjoying horses and ponies owned by friends. Mr. Potts has a 3-bedroom, 2-bathroom home with no other occupants. W has his own bedroom. There is a large backyard in which he can play. Mr. Potts has good friends nearby and family members who live in the general area.

c) He describes in detail the type of parenting

schedule that he would suggest, under the alternatives of him having primary parenting time or the parties sharing parenting time on an equal basis. 2. Court Testimony [ 32 ] Mr. Potts was cross-examined by counsel for Ms. Marschlik and re-examined by his own counsel. [ 33 ] The first part of this questioning dealt with the parties’ relationship while they lived in Calgary, until fall 2019. He explained the companies for which he worked, the length of shifts, and the degree to which he travelled.

Mostly, he worked in the Calgary area during these years, with an overnight trip approximately once per month during a certain period. Infrequently, there were occasional longer trips to the United States. [ 34 ] He began a millwright program through SAIT, a four-year program which required annual schooling of eight weeks and apprenticing employment of 1500 hours. After the first year, he successfully studied the modules and challenged the tests for the second and third years. The parties could not afford him taking time off work to go to school.

He did not complete the program. [ 35 ] W was born in December 2017. Ms. Marschlik primarily looked after him when Mr. Potts was working or away, with some help from Mr. Potts’s mother and Ms. Marschlik’s sister. When Mr. Potts was around, he usually was home by around 4 p.m. and would help out by looking after W and preparing meals for the family. He was quizzed on what he prepared for food, and gave some general answers, admitting that he did not remember all of the details. He spent time with W in the late afternoons and evenings, and did whatever Ms. Marschlik requested him to do.

This involved playtime, bathing, occasional reading and singing to W. On weekends, they shared the time and responsibilities for W equally. [ 36 ] Around October 2019, by mutual agreement, the parties moved with W to an acreage at Condor. One of the reasons for the move was to be close to her brothers and step-father, who had an acreage in the vicinity. [ 37 ] While living at Condor, Mr. Potts changed his employment to Robert’s Mechanical. It was based in Balzac, but Mr. Potts’s role was contracting work at various jobsites, some relatively nearby, some farther away.

He submitted schedules to show his work history during this period. While at times he might be away for a week or more, he could then take time off to be home with his family. It was his decision which jobs to accept. [ 38 ] Ms. Marschlik and Mr. Potts discussed this work arrangement and agreed that it was the only work he could do from the acreage. He readily acknowledged that Ms. Marschlik looked after W while he was away, as they had agreed. [ 39 ] Mr. Potts was challenged about evidence Ms. Marschlik gave regarding what she characterized as a “handwritten promissory note” dated June 4, 2021. In that note, Mr.

Potts states that he “will continue to pay Raven Marschlik $400 per month for the line of credit until I am able to get a loan to take it. Total amount as of June 4, 2021 $18,350.” [ 40 ] Mr. Potts explained that the line of credit was Ms. Marschlik’s idea; a bank had offered her one, which she was inclined to take and he resisted.

On reconsideration, he decided the line of credit could be used to replace higher-interest loans he had incurred while taking time off work to go to school – not a school expense but the cost of maintaining his family while going to school. [ 41 ] The so-called promissory note was written after separation. As the note itself indicates, Mr. Potts testified that he was paying monthly for the line of credit in Ms. Marschlik’s name. However, she required this note as a condition of allowing him to see W. [ 42 ] When asked in cross-examination how Ms. Marschlik was as a mom when they lived together, Mr.

Potts said she cared well for W and he never saw anything other than love, the only exceptions being if she got upset she might forget that he was around and yell and throw things. He was asked for details of these occasions, and gave them, explaining that it was very easy to set Ms. Marschlik off: it could be something he did, or something else that annoyed her (such as getting a wrong order from Tim Horton’s). [ 43 ] When asked whether Ms. Marschlik and he have been able to see eye-to-eye on anything after separation, Mr. Potts said it was hard to answer because they had not talked. Ms.

Marschlik refuses to communicate with him. He is confident they could cooperate if she would agree to communicate with him. [ 44 ] In the last few years, he testified, he has had to fight for every moment with W. [ 45 ] If granted primary care, Mr. Potts suggested there should be a transition to avoid unnecessarily shocking W. He has already looked into education for W in Sylvan Lake; while he is not permitted to go to medical appointments and does not have his current doctor’s information, he has placed him on a waiting list for a doctor in Sylvan Lake.

He has taken steps to obtain information from his current school and, when asked, was readily able to name W’s teacher. [ 46 ] He described the suitability of the home he has in Sylvan Lake. He has friends in Sylvan Lake and an aunt. He has found three employers who would give him work that would keep him more regularly at home, albeit he would be earning less than he does now. [ 47 ] He described the routines with W when he has weekend time with him. They have a morning routine, which involves washing up and brushing teeth.

Sometimes, they go out for activities such as ice fishing, walks, playing in the snow or playing soccer. Sometimes they play in the backyard. Mr. Potts has taught W how to play chess, to the point that they can now play games together. W can build Lego sets by following instructions himself. Their bedtime routines usually involve Mr. Potts singing to him, W going to bed at 8:00 p.m., usually asleep by 9:00 p.m. C. Melody Klinck 1. Affidavits

[ 48 ] Ms. Klinck owns and operates Inspiring Virtues, a business based in Red Deer which provides a variety of support services, including supervised visits. They were retained to supervise several visits from September 11-26, 2021 during which Mr. Potts spent time with W and Inspiring Virtues’ facilities. There were no concerns with these visits. [ 49 ] They were retained again from October 2021 to February 2022 to provide the transportation services for W to and from his parenting time with Mr. Potts, as required by a court order. On three occasions, Ms.

Klinck provided these services personally; on the other occasions, they were provided by her employee, Michelle Nisi. [ 50 ] On the first occasion, in a telephone call Ms. Marschlik asked Ms. Klinck to conduct an inspection of Mr. Potts’s home because, she said, he had a history with drugs and wanted to be sure there were no people living there who may be using drugs or drinking alcohol. Ms. Klinck advised that this was not something they typically did, but she would ask Mr. Potts for his consent. When Ms. Nisi arrived at Mr. Potts’s home, she requested permission to do the inspection.

He agreed and she conducted the inspection, then reported to Ms. Marschlik that she did not observe anything indicating a lack of safety or the presence of drugs or alcohol. [ 51 ] Over the course of providing transportation services, Ms. Klinck had no concerns about W’s time with Mr. Potts. As far as Ms. Klinck and Ms. Nisi could tell, W was happy and excited to be visiting with Mr. Potts and all interactions between Mr. Potts and Inspiring Virtues were friendly and polite. [ 52 ] On four scheduled dates for transportation services, there were cancellations by Ms. Marschlik for various reasons. 2.

Court Testimony [ 53 ] Ms. Klinck was cross-examined by counsel for Ms. Marschlik, and asked question on re-direct by counsel for Mr. Potts. [ 54 ] Despite being challenged, she maintained that she and her organization kept their independence and were not biased in dealing with the parties. Frequently they deal with high-conflict families. They may say or write things to show empathy to either parent, but maintain their independence. [ 55 ] Following standard protocol, she maintained constant communication with Ms. Nisi when she was handling the transportation.

In addition to contacts while the service was being provided, at the end of every transportation service there was a full briefing. D. Robyn Ainsworth – Affidavits [ 56 ] Ms. Ainsworth is co-owner and operator of Dynamic Testing Solutions Ltd. [ 57 ] Her affidavits confirm that Mr. Potts attended for the following drug tests:

a) July 20, 2021, a five-panel head hair follicle test;

b) November 22, 2021, a fifteen-panel toenail follicle test;

c) November 21, 2022, a fifteen-panel hair follicle drug test; and

d) March 27, 2023, a fifteen-panel toenail follicle drug test. The window of detection for drugs is up to twelve months for toenail tests and up to three months for hair tests. [ 58 ] All of the tests were negative for all substances. [ 59 ] Counsel for Ms. Marschlik agreed that Ms. Ainsworth was not required to attend for cross-examination. E. Ms. Marschlik 1. Introduction [ 60 ] Mr. Potts applied for an order excluding from evidence exhibits attached to Ms. Marschlik’s affidavit. Primarily, these are a brief email confirming Ms.

Marschlik’s involvement in Alanon meetings and letters from those offering accommodation and childcare assistance if she moves to Calgary. The objection is that they are hearsay statements by third parties, rather than statements under oath by Ms. Marschlik, the party required to provide evidence based on personal knowledge. [ 61 ] I decline to exclude these exhibits. The Alanon note is a brief statement confirming Ms. Marschlik’s participation in a program, not unlike the certificates of completion for various courses that are exhibits to Mr. Potts’s first affidavit.

I agree that the letters of support stray into technically impermissible areas, but primarily they confirm arrangements that would be available in Calgary, not unlike a party attaching documentation from a landlord or daycare centre confirming such arrangements. [ 62 ] My

summary of Ms. Marschlik’s affidavit is structured differently than my

summary of Mr. Potts’s first affidavit. That is because Ms. Marschlik’s affidavit primarily is a paragraph-by-paragraph answer to Mr. Potts’s first affidavit, and Mr. Potts’s second affidavit is likewise primarily a paragraph-by-paragraph rebuttal to Ms. Marschlik’s affidavit. Thus, it seemed best to refer to Ms. Marschlik’s affidavit and Mr. Potts’s second affidavit together. 2. Affidavits

[ 63 ] Ms. Marschlik alleges that while she was pregnant, Mr. Potts “left home to binge on alcohol and drugs,” which occurred habitually before and after the birth of W. She attaches a number of text messages as exhibits, to which Mr. Potts responds (in his second affidavit) that they are nearly two years before W’s birth and refer to low self-esteem he had at the time. [ 64 ] She lists periods from 2019 through December 2021 where Mr. Potts was working out of town. Mr. Potts responds that, according to a

schedule he attaches, her representations are not correct; as to the period following separation he worked certain hours and accepted additional jobs only because Ms. Marschlik would not agree to him spending time with W and he had legal bills. [ 65 ] She alleges that Mr. Potts was “not there” to care for W at various times, including “when our son was circumcised at one month old as he had left our home.” Mr.

Potts responded that he was physically present at circumcision when it was performed (naming the doctor) and during the healing period. [ 66 ] More generally, she alleges that when the parties lived in Calgary, Mr. Potts worked all day and was sometimes out in the evenings and thus unable to see W before his bedtime. According to her affidavit, she took responsibility for the household, including preparing dinner for when Mr. Potts came home from work and taking sole responsibility for bathing W. [ 67 ] Ms.

Marschlik states that “both our families still live in Calgary, as well as our extended families,” a statement rebutted by Mr. Potts who deposes that many of her family members are in the Eckville and Rocky Mountain House area and work there. He acknowledges that his parents reside in Calgary, but come to visit him and W at Sylvan Lake where there is more room. [ 68 ] She deposes that “I was not estranged from my family” and any misunderstandings arose with Mr.

Potts, who in his reply affidavit denies being the cause of estrangement (explaining how the estrangements occurred). [ 69 ] She explains the hostile text messages she sent to Mr. Potts as being either at the height of their breakup, or when she felt threatened by Mr. Potts; and says they “were the result of years of emotional abuse and trauma.” Mr. Potts responded by saying the messages were not isolated to these time periods and could not have been a response to threats as he made none. He attaches further examples of abusive and alienating text messages throughout 2020 and 2021. [ 70 ] Ms.

Marschlik contended that the initial consent order of September 2, 2021, which imposed supervised parenting time (for a short adjournment until September 28), was partly because of Mr. Potts’s “long history of alcohol, steroid use and drug abuse.” According to Mr. Potts, the text messages are from 2016 or 2017; he never drives under the influence of substances; and has not consumed any alcohol since October 31, 2020, six months before separation. [ 71 ] Ms.

Marschlik’s affidavit does not set out her proposed parenting plan but refers to attached statements from her brother (who would provide her with a 3-room semi-basement suite); a statement from a woman who is committed to booking a place for Ms. Marschlik and W to stay close to Eckville every other Saturday night to assist in visits with Mr. Potts; a statement from her sister Nicole, who will provide free childcare as needed; and statements from the Asokewin Friendship Centre in Rocky Mountain House giving positive reviews of Ms. Marschlik’s parenting and personality. 3. Court Testimony [ 72 ] Ms.

Marschlik was cross-examined by Mr. Potts’s counsel and asked questions on re-direct by her own counsel. [ 73 ] Ms. Marschlik said she was not sure if Mr. Potts has good qualities as a parent. She has not personally observed his parenting time with W. [ 74 ] In an affidavit sworn on January 20, 2022, Ms. Marschlik said Mr. Potts had never allowed the family to partake in Christmas as it was not Jesus’ birthday and “now we celebrate Christmas with our son and this year was the first time our son was allowed to see Santa Claus and he loved it.” This evidence was, at best, mistaken. Ms.

Marschlik was shown photographs that she acknowledged depicted Christmas celebrations in 2018 and 2019; a photograph from 2018 shows W with Santa Claus (Ms. Marschlik indicated she took him to see Santa Claus at a mall with some friends). [ 75 ] In her affidavit sworn October 1, 2022, Ms. Marschlik stated that Mr. Potts “was not there to care for our son when our son was circumcised at 1 month old [ sic ] as he had left our home” (para 5(b.)(ii.)). She acknowledged in her testimony that the parties took W together for circumcision, as stated in Mr. Potts’s reply affidavit. [ 76 ] Ms.

Marschlik registered W in elementary school on June 3, 2022, about which she did not consult or notify Mr. Potts. The registration form indicates that she gave no information about the second parent and legal guardian, contrary to her certification that “I have also identified all Parent/Legal Guardians for this student.” As emergency contacts, she named several of her relatives, but not Mr. Potts. [ 77 ] Ms. Marschlik stated that she did not want Mr. Potts to have the registration information because it contained her personal information, and she did not want Mr. Potts stalking her. When Mr.

Potts became aware of the registration, he requested and obtained the documentation from the school’s principal; in the August 16, 2022 email sending him the registration form (which contained Ms. Marschlik’s personal information), the principal stated “to ensure good communication, I have also spoken with Raven today and have indicated that I would be sharing this information with you.” Ms. Marschlik acknowledged in her testimony that the principal had called her about sending out the information. [ 78 ] Similarly, Ms. Marschlik registered W at a daycare without involving Mr.

Potts and, again because of concerns about personal information, did not give him a copy of the registration form. She was aware that Mr. Potts wanted the opportunity to care for W when Ms. Marschlik needed to use daycare, but chose not to request this assistance. She said she wanted to be able to use childcare that was close and available on short notice and did not feel she could rely on Mr. Potts. [ 79 ] In her October 1, 2022 affidavit, Ms. Marschlik stated that “I was not estranged from my family. Anytime I had a

misunderstanding with my family, it always had to do with the Applicant” (para 7.a.). She acknowledged this contradicted what she stated in her September 17, 2021 affidavit, para 37: The Applicant has suggested supervision be by a mutually agreeable third party. Randy [her step-father] was previously supervising visits, but he does not feel comfortable to continue. As noted above, I am estranged from my family and do not have anyone else to suggest. [ 80 ] Another contradiction in her evidence involved drug use.

In her October 1, 2022 affidavit, she stated: I strictly deny participating in drug activity with the Applicant. The Applicant took drugs with my brother from 2013 to 2015 and my brother would tell me about it causing him to be hateful towards my brother. In her January 20, 2022 affidavit she stated “I did smoke marijuana with the Applicant. I have never used cocaine or MDMA . . . .” When asked in her testimony whether she had used the “mushrooms” drug, she stated unequivocally “no.

I’ve never done that.” She then acknowledged a contradiction with the January 20, 2022 affidavit, where she stated that in 2016, she and Mr. Potts attended a “spiritual journey in a controlled environment by a couple that the Applicant works with in their home to use mushrooms” (para 15). [ 81 ] Currently, she smokes marijuana about two times per week. She has refused to take drug tests, despite giving an undertaking at questioning to do so and despite Mr.

Potts agreeing to pay for them. [ 82 ] She was requested at questioning to provide details, including photographs, of where she and W would live in Calgary, if she were granted permission to move. She has not done so. [ 83 ] Her explanation for wanting to move to Calgary is childcare: she needs relatives who can be available at the last moment. She also believes it would help her find better employment than is available in Rocky Mountain House. F. Assessment of Testimony [ 84 ] Mr. Potts gave his testimony in a very straightforward, confident manner. He showed no evasive or defensive tendencies.

He readily conceded Ms. Marschlik’s good qualities as a parent and only made negative comments when prompted by questions. In argument, he was criticized for being unable to give details on several points, but these were the type of matters that naturally would be forgotten. I conclude that he is a reliable, credible witness on all material points. [ 85 ] There are no concerns about Ms. Klinck’s credibility and reliability as a witness. Part of her testimony and affidavit evidence were based upon reports from Ms.

Nisi; however, those were provided in the usual course of their business and both counsel elicited such information. [ 86 ] I have serious concerns with the reliability and credibility of Ms. Marschlik’s evidence. I have mentioned a number of contradictions in her evidence; there were many more. Not only do some of her affidavits contain contradictory evidence; her court testimony was often inconsistent with what she said before. Her manner was defensive, evasive, even surly at times. In my view, she goes out of her way to paint Mr.

Potts in as bad a light as possible and has a tendency to mold her evidence according to the point she wishes to make. [ 87 ] Where there is a contradiction between the evidence of Mr. Potts and Ms. Marschlik, I prefer the evidence of Mr. Potts. IV. Principles of Law A. Matters for Determination [ 88 ] Procedurally, there is only one application before me: Mr. Potts’s parenting application, filed September 1, 2022. As described above, Ms.

Marschlik was prevented from moving with W to Calgary by an April 21, 2022 order; while she indicates that is still her desire, she has not filed a mobility application. [ 89 ] However, it was clear to the parties and the court that mobility would be an issue. Paragraph 1(

a) of the oral hearing order sets out the issues to be determined, as follows: The type or nature of the application to be heard at the hearing is for: i. The Applicant’s Application for primary care of the Child, or in the alternative, shared parenting of the Child; ii. The Applicant’s Application for a declaration that the Respondent is in civil contempt of Court; iii. The Applicant’s application for costs against the Respondent; and iv.

The Respondent’s Cross-Application for Mobility of the Child, namely whether the Respondent is permitted to relocate the Child to Calgary, Alberta. [ 90 ] In fact, there was no cross-application for mobility but that technical defect was cured by the oral hearing order. Both parties presented evidence on mobility issues and parenting issues in a more general sense. [ 91 ] Thus, primarily the matters for determination are both parenting and mobility of W.

B. Guardianship [ 92 ] Unless otherwise ordered, the powers, responsibilities and entitlements of guardians are governed by

section 21 of the Family Law Act , S.A. 2003, c. F-4.5 , as amended. In this case, Mr. Potts and Ms. Marschlik are both guardians, each having acknowledged parentage and demonstrated the intention to assume the responsibilities of a guardian (section 20(2)). [ 93 ] The Family Law Act sets out the powers, responsibilities and entitlements of guardians in detail.

Where there is more than one guardian, the guardians may each exercise the powers, responsibilities and entitlements; shall provide information relating to these matters to the other guardian at that guardian’s request; and shall use best efforts to cooperate in exercising guardianship: section 21(2). Unless limited by an order, each guardian is entitled to be informed of, consulted about and to make all significant decisions affecting the child and to have sufficient contact with the child to carry out those powers and responsibilities: section 21(4).

Likewise, unless limited by an order, each guardian may exercise the powers of making day-to-day decisions, including having care and control of and supervising the child; make decisions about education and extra curricular school activities; consent to medical, dental and other health- related treatment; receive and respond to any notice a guardian is entitled or required by law to receive; and receive from third parties health, education or other information that may significant affect the child: section 21(6). C.

Parenting [ 94 ] These parties were not married; therefore, any parenting order must be made under the Family Law Act rather than the Divorce Act , R.S.C. 1985, c.3 (2nd Supp .), as amended. There are no differences between the statutes that affect this case. [ 95 ] There has not yet been an order for parenting of W on anything other than an interim, piecemeal basis. None of the orders determined with whom W primarily should reside. Rather, they tinkered with the de facto reality that Ms.

Marschlik had primary care of W and the parties disagreed on what parenting time and responsibilities each parent should have until the issues could be determined in a special chambers hearing or, as it turned out, a viva voce hearing. This is the first time the court has before it the task of what parenting order is in W’s best interests. [ 96 ] Thus, I treat Mr.

Potts’s application as under section 32(1) of the Act which provides that where a child has more than one guardian, the guardians are unable to agree on how to exercise the powers, responsibilities and entitlements of guardianship and are living separate and apart, “the court may . . . make an order relating to the exercise of the powers, responsibilities and entitlements of guardianship in respect of the child.” Pursuant to section 18(1), the court is to “take into consideration only the best interests of the child.” [ 97 ] In determining those interests, section 18(2) states that “the court shall (

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

b) consider all of the child’s needs and circumstances, including . . .” eleven specific factors listed in the section. D. Mobility [ 98 ] I agree with CR v PS , 2022 ABQB 410 , that mobility applications under the Family Law Act now should be governed by the same test required for married parents under the Divorce Act . [ 99 ] Amendments to the Divorce Act in 2019 added detail on how courts are required to determine the best interests of a child when making a parenting order. The considerations and factors set out in sections 16(2) and (3) are almost identical with

section 18 of the Family Law Act . In addition, the Divorce Act amendments specifically address mobility in

section 16.92 . [ 100 ] While the new Divorce Act provisions, strictly speaking, applied to married parents, there is no reason the Family Law Act principles, which are not exhaustive, cannot accommodate them and there is no reason why “children of unmarried parents should be treated differently from children of married parents”: CR v PS , para 59 . However, unlike in the new Divorce Act provisions, under the Family Law Act an applicant in a mobility case still has the onus of proof on a balance of probabilities: ibid . para 61. E.

Order of Analysis [ 101 ] This case requires me to consider both parenting and mobility. As in Ting v Ting , 2022 ABQB 229 , parenting should be determined before mobility: para 187. However, in determining the best parenting arrangement for W’s interest, I cannot ignore the mother’s plans to relocate. As held in Ting , “the relevant inquiry is into the child’s best interest, evaluated considering the relocation of one parent, and effect on the child should he be allowed to move or should he stay with the remaining parent”: para 188.

I must be mindful of the status quo prior to a move but that does not end the inquiry; I must consider the child’s best interests evaluated in the new circumstances of a move if permitted compared to the effect on him if a move is not allowed. In short, “the child’s best interest must be assessed in the new circumstances, its impact on [the child] if he stays or if he goes: Ting , para 189 , citing other authority. [ 102 ] In this case, Ms. Marschlik has had primary care of W for the entirety of his young life.

That means, on the competing applications before me, my assessment of W’s best interests must focus on two possible scenarios: Ms. Marschlik retaining primary care and moving with W to Calgary, with Mr. Potts having access; or, Mr. Potts obtaining primary care responsibilities and staying with W in Sylvan Lake, with Ms. Marschlik having access: Scott v MacLean , 2020 ABCA 173 , paras 10-12 . These alternative scenarios do not include consideration of whether Ms.

Marschlik will decline to relocate if W is not permitted to go; the court is not asked to take into account a third alternative, namely whether it is better if no one moves: Scott v Maclean , para 15 . V. Findings: Parenting and Mobility

[ 103 ] As noted above, section 18(1) of the Family Law Act states that “the court shall take into consideration only the best interests of the child” when making parenting orders. Determination of those best interests is informed by section 18(2) which begins with the general requirement that “the court shall . . . ensure the greatest possible protection of the child’s physical, psychological and emotional safety.” [ 104 ] More detail is given by the requirement in section 18(2)(

b) that “the court shall . . . consider all the child’s needs and circumstances,” including a list of specific factors. Those will now be addressed individually according to the evidence in this case. [ 105 ] Child’s Physical, Psychological and Emotional Needs, Including Need for Stability : With one exception, the evidence provides no compelling reasons to find that one parent is better suited to provide for W’s physical, psychological and emotional needs than the other (although I have the benefit of a detailed parenting plan from Mr. Potts and little from Ms.

Marschlik). [ 106 ] I conclude from the evidence that W benefits from time with his father and would like to be with him more often. Unfortunately, as I will explain in more detail presently, Ms. Marschlik has shown that it is unlikely she will encourage or facilitate a greater parenting role for Mr. Potts. In contrast, Mr. Potts’s parenting plan (and his testimony) indicate a willingness fully to involve Ms. Marschlik in W’s life. [ 107 ] Stability is always an important consideration, even with a five-year-old child.

However, it is usually the case that younger children are less attached to where they are living. That may be so particularly with W, because he has already lived in several different places: Calgary, Condor, and Rocky Mountain House, and has spent significant time in Sylvan Lake. In either scenario under consideration, another move would be in the cards: either to Calgary with his mother or to Sylvan Lake with his father. [ 108 ] I also take into account that stability is a relevant consideration when determining whether a child should move from the primary care of one parent to another.

I address this in more detail below. [ 109 ] W was in the care of both parents until about age three and a half. During that time, Mr. Potts played a very involved role, including periods when he was at home full time. On the other hand, Ms. Marshlik was with him as primary caregiver and stay-at-home mother in those years and Mr. Potts did some traveling for work. [ 110 ] Since separation, W has spent less time with Mr. Potts. The degree to which Mr. Potts’s time with W has been limited was due to Ms. Marschlik’s refusal to allow him a greater role.

Objectively, it still means W has spent much of his young life with Ms. Marschlik and limited access visits with Mr. Potts. Thus, there is little doubt that W has a particularly close bond with his mother. [ 111 ] I recognize that if W’s care is changed from his mother to primarily to his father, there will be a period of adjustment.

That is a factor tending against the change, but not one that cannot be overcome if the overall arrangement is in W’s best interests. [ 112 ] Child’s Cultural, Linguistic, Religious and Spiritual Upbringing and Heritage: There is very little evidence assisting in the application of this factor, and nothing to choose between the parties. There are subtle references in the documents indicating that both parties have religious convictions. Ms. Marschlik gave no evidence about how this factor would be addressed; Mr.

Potts’s parenting plan states that he and W have been attending a church on most Sundays during his parenting time since July 2022 and expresses the hope “that Raven and I can each support W in religious/cultural/spiritual connections, whatever that looks like for each of us.” [ 113 ] The Child’s Views and Preferences : As would be expected in a child five years old, and in the absence of expert evidence, the record does not disclose a clear preference by W nor should that be a dominant factor. The whole of the evidence leads me to conclude that he wishes to spend time with both parents and the testimony of Ms.

Klinck indicates he has expressed a wish to spend more time with Mr. Potts. [ 114 ] Plans Proposed for the Child’s Care and Upbringing : Mr. Potts provided a parenting plan, describing W’s personality, favourite things and activities, the Sylvan Lake home, neighbourhood and community and a proposal for decision-making, school, daycare and play therapy. It is a detailed, comprehensive plan that has not been met with any significant criticism. It is centered around the realities of W’s life, including difficulties in communication between his parents. Mr. Potts sees time with Ms.

Marschlik as important and goes so far as to say shared parenting would be ideal if the parties could communicate better one day. Mr. Potts’s planning shows foresight and flexibility, particularly in securing other work opportunities that will better suit full-time parenting in Sylvan Lake.. [ 115 ] In contrast, Ms. Marschlik has provided no information about her ongoing parenting plan focusing, instead, of her criticisms of Mr. Potts, and assuming that he will prefer to work away from home rather than spend time with W. Details are limited to exhibited letters from family members who offer to assist if Ms.

Marschlik moves W to Calgary. Descriptions about the neighbourhood, the home, availability of a family doctor, what work she might pursue and what after-school care might be available are missing. [ 116 ] Further, Ms. Marschlik’s plans give little attention to ensuring that Mr. Potts will remain involved in W’s life in a meaningful way. This is particularly important because her planned move to Calgary with W will make it more difficult for W to spend quality time with Mr. Potts. [ 117 ] Family Violence : There are allegations by each parent about violent behaviour of the other. However, these predate W.

There is no credible or reliable evidence of family violence relevant to determining W’s best interest. Ms. Marschlik did not rely upon a history of family violence in the evidence she tendered at this hearing, nor did she put any allegations of family violence to Mr. Potts when he was cross-examined.

At least since separation, there have been no incidents of violence between the parties and there is nothing that indicates W’s safety or wellbeing is at risk. [ 118 ] Nature, Strength and Stability of Relationships : As stated above, I have no concerns about the status of the relationship between W and each of his parents. Neither parent is currently living with another partner whose relationship with W would have to be considered. The evidence about extended family members is limited, and thus is not a major factor in determining with which parent W primarily lives and in which location.

[ 119 ] Ability and Willingness to Care for and Meet the Needs of the Child and Communicate and Cooperate on Issues Affecting the Child : While I have limited information regarding Ms. Marschlik’s parenting abilities, Mr. Potts readily acknowledged in his testimony that she was a good mother. Ms. Marschlik refused to acknowledge the same for Mr. Potts, saying she did not know. The evidence convinces me that he is a very good father for W. [ 120 ] The more material aspect of this factor regards communication and cooperation. The evidence convinces me that Ms.

Marschlik has deliberately done what she can to limit Mr. Potts’s time with W and involvement in his upbringing. Some of her text messages offer graphic examples of her attitude. Following the separation, she repeatedly brushed off his requests to see or Facetime with W, saying they did not need to see or speak with him and W’s time with Mr. Potts would be very limited. The text exchanges ended when Mr. Potts filed his application in August 2021 for time with W. [ 121 ] It was submitted on Ms. Marschlik’s behalf that the text messages needed to be understood as the result of a relationship in which Mr.

Potts traumatized Ms. Marschlik. There is no credible evidence to support that allegation. Certainly, there is enough evidence to indicate the relationship was often toxic for both parties. Nevertheless, the conduct and words of the parties following separation show no reasonable basis for a concern about Mr. Potts’s ability as a parent while, at the same time, showing a consistent effort on the part of Ms. Marschlik to limit his time with W and, when time was granted, to control it by imposing conditions. [ 122 ] There is no evidence that Mr. Potts took the same attitude.

Rather, he consistently sought parenting time on whatever conditions were available. He took drug tests to address the accusations that he continued to be an addict, with the results always being negative. His parenting plan and his testimony indicate that he is willing to communicate and cooperate with Ms. Marschlik as much as she will permit. [ 123 ] Particularly cogent examples of Ms. Marschlik’s refusal to allow Mr. Potts any involvement in W’s life are school and daycare registration. In both cases she made the registrations without any consultation.

She refused even to acknowledge his role as guardian on the registration documents. That is consistent with her overall course of conduct, which has been to interfere with Mr. Potts fulfilling his role as a legal guardian and parent. [ 124 ] Ms. Marschlik’s resistance to communicating about W with Mr. Potts is likely to become even more entrenched if she moves with W to Calgary, much farther away from Sylvan Lake, making it more difficult also for Mr.

Potts to be proactive in obtaining information. [ 125 ] Benefit to the Child of Developing and Maintaining Meaningful Relationships With Each Guardian : As I have made clear, my view of the evidence is that Ms. Marschlik cannot be relied upon to encourage a positive relationship between W and his father. On the other hand, Mr. Potts has indicated a willingness to work with Ms. Marschlik to whatever extent possible. [ 126 ] If W moves to Calgary with his mother, it will be harder for W and his father to spend time together and strengthen their bond, especially when he is in school full time.

On the other hand, W already has a strong bond with his mother because of her primary care for him that can more easily be sustained through visits and other forms of contact. [ 127 ] Ability and Willingness of Each Guardian to Exercise Powers, Responsibilities and Entitlements of Guardianship : Both parents have shown that they are able to provide for W’s care and to undertake the responsibilities associated therewith. [ 128 ] Civil or Criminal Proceedings that are Relevant to the Safety or Well - Being of the Child : There have been accusations of criminal conduct but none, in my view, that can credibly be related to W’s safety or well-being.

In addition, neither party relied upon this in their evidence or submissions. [ 129 ] Having addressed the specific factors identified for parenting orders in section 18(2) (

b) of the Family Law Act , I address the factors to be considered in a mobility application under

section 16.92 of the Divorce Act to the extent not already covered. There is considerable overlap with what I have already addressed, and thus I will consider these points more briefly:

a) Reasons for Relocation: Ms. Marschlik’s reasons for a move are that there would be more work availability in Calgary and she would have support with W from her family. These considerations might be reasonable, but in this case do not weigh heavily in the balance because of their vagueness and lack of certainty. She has no work waiting for her, nor has she made clear what she thinks would be available. Relationships with her family have been unstable in the past.

Further, it is not clear that she has addressed long-term housing for herself and W, in light of the high costs of living in Calgary. (Her brother’s letter, an exhibit to her affidavit, is “a formal written invitation to stay with me at my residence for as long as she requires to secure appropriate housing and explore employment opportunities in Calgary Alberta.”)

b) Impact of the Relocation on the Child: For a five-year-old boy who has already had a number of moves, this does not seem particularly problematic. [ 130 ] Balancing the Factors : Having considered each of the statutory factors in light of the evidence that I accept, it remains to consider them as a whole, and to “ensure the greatest possible protection of the child’s physical, psychological and emotional safety,” as called for in

section 18 (a). In doing so, I observe that Ms. Marschlik’s entire position is overwhelmingly negative: she criticizes Mr. Potts for being an addict giving rise to a safety concern, even though the evidence indicates no reasonable basis for a current concern on that point; she criticizes Mr. Potts for choosing work that takes him away from home, even though he has planned to change employment to accommodate increased parenting time; and, at least implicitly, she relies on the fact that she has been the primary care parent in W’s life. [ 131 ] Mr.

Potts has answered the criticisms and put forward a well-informed, reasonable parenting plan. The cases emphasize that there are no presumptions in parenting disputes, whether in favour of the status quo or the parent who historically had primary care: the only standard is the best interests of the child: AA v JA , 2017 ABQB 19 , para 18 , and cases cited. [ 132 ] W has a positive relationship with each parent. Given the evidence on Mr. Potts’s approach to parenting, I am convinced that W

would benefit by his father having more involvement in his care and upbringing. Ms. Marschlik has made it clear over the past couple of years and in her evidence before me that she would not facilitate a significantly-increased role by Mr. Potts. Rather, likely she would limit his parenting where possible. Further, only Mr. Potts has put forward a comprehensive, positive parenting plan. He has demonstrated a willingness and ability to provide for W and an intention, to the extent possible, to involve Ms.

Marschlik in that parenting. [ 133 ] Whether under the Divorce Act or the Family Law Act , it is desirable to maximize the time a child has with each parent, but only to the degree consistent with a child’s best interests. Mr. Potts presented a short alternative shared-parenting proposal that seems based on the status quo of him living in Sylvan Lake and Ms. Marschlik continuing to reside in Rocky Mountain House. For reasons given earlier, it is not proper in a mobility application to consider that “third alternative” of whether it is better for neither party to move: Scott v MacLean , para 15 .

In any event, on the facts before me this is not a case where shared parenting seems in the best interests of W. [ 134 ] The authorities caution against shared parenting orders where the parents cannot cooperate: Richter v Richter , 2005 ABCA 135 , para 11 ; Rensonnet v Uttl , 2016 ABCA 196 , para 25 ; Gray v Goguen , 2022 ABQB 273 , paras 74-85 . [ 135 ] This is not merely a case where the parties have difficulty with communications; rather, Ms. Marschlik has chosen to have virtually no contact with Mr. Potts. Further, her inability or refusal even to recognize Mr.

Potts’s role as guardian, much less seek out his involvement, convinces me that shared parenting would increase disagreements and thus be contrary to W’s best interests. [ 136 ] I must, then, determine who should have primary care of W and whether it is in his best interests to move with Ms. Marschlik to Calgary or reside with Mr. Potts in Sylvan Lake. Primarily because Ms. Marschlik is unlikely to recognize Mr. Potts’s proper role in parenting W, I conclude that it is in W’s best interests for his primary residence to be with Mr. Potts. Mr.

Potts expressed a willingness for this to be done by transition, and I agree that is the best approach considering that Ms. M has had primary care in recent years. I have no concern that W cannot readily adjust to this change given the positive relationship he has with his father and the time they have spent together at Mr. Potts’s residence in Sylvan Lake. [ 137 ] In coming to this conclusion, I fully recognize the seriousness of removing a child from the primary care of a parent with whom he has been living for some years.

In my view, it is in W’s best interests for this to occur in this case, for reasons I summarize as follows:

a) From his evidence and detailed parenting plan, I am confident that Mr. Potts recognizes the importance of the bond between W and Ms. Marschlik and will facilitate and nourish it. I believe he will be flexible in W’s best interest to ensure that they stay close. He readily and fairly acknowledged in his testimony that he considers Ms. Marschlik to be a good mother.

b) The diligence Mr. Potts has shown as a father in the type of activities he shares with W and the arrangements he has made for his schooling and health care convince me that he will be a very good primary residential parent for W. On the evidence, there is no aspect of Ms. Marschlik’s care for W that will go unattended to when Mr. Potts is the primary care parent.

c) It is not in W’s best interests to remain in the primary care of Ms. Marschlik. I have concluded that she will not encourage a healthy relationship between W and Mr. Potts; rather, she will interfere with and erode that relationship. It is in W’s best interests to have a healthy relationship with both parents and that will not occur if he remains in Ms. Marschlik’s primary care. VI. Directions for Parenting Order [ 138 ] I will make general directions for what should be included in the formal order. There are details best left for negotiation between the parties, through their counsel.

If they cannot agree, those details will be settled by me on further application. [ 139 ] My general directions are as follows: 1. For the month of July, the parents will have shared parenting time on a week on/week off basis, beginning July 1. 2. In August, the

schedule will change so that W is with Mr. Potts for ten days, Ms. Marschlik for four days, Mr. Potts for ten days, Ms. Marschlik for four days and so on, until W begins school. 3. When school begins, W will be in the primary care of Mr. Potts and with Ms. Marschlik every second weekend. 4. For the weeks Ms. Marschlik does not have a weekend, there may be an evening visit if that seems feasible given W’s age and the distance between Sylvan Lake and Calgary; and there should be liberal telephone or Facetime communication at set times. 5. There will be equal parenting time during school vacation periods such as Christmas/New Year’s and Easter and commencing in summer 2024. If desired, the

schedule can allow W to be with a parent on their special days (birthdays and Mother’s or Father’s day, as the case may be). VII. Contempt [ 140 ] One of the remedies claimed in Mr. Potts’s application is “an Order that the Respondent shall be declared in civil contempt of Court having regard for her non-compliance with the Order granted on September 28, 2021.” In support of his allegation of contempt, Mr.

Potts states that “Raven has denied me court-ordered parenting time on five . . . occasions: October 2, November 27 and December 25, 2021, and March 11 and May 6, 2022.” He particularizes why he believes that in each of these cases, Ms. Marschlik intentionally denied him parenting time disregarding W’s welfare. [ 141 ] Ms. Klinck of Inspiring Virtues was enlisted in the allegations by having her include in her affidavit text messages relating to

the dates on which Mr. Potts complains of being denied parenting time. [ 142 ] In her affidavit, Ms. Marschlik explains why Mr. Potts was not given time with W on each of the occasions. She was not challenged to any significant degree on her explanations when she was cross-examined. [ 143 ] In Ripley v Ripley , 2022 ABQB 295 , paras 47-53 , I summarized the main principles on the law of civil contempt established in the authorities and codified in rule 10.52(3) of the Alberta Rules of Court .

For present purposes, I reiterate merely that the contempt power is discretionary, should be used cautiously and with great restraint, is an enforcement power of last resort, is primarily coercive rather than punitive and thus largely concerned with ensuring compliance with court orders.

Contempt will not be established if it is not been proved beyond a reasonable doubt that failure to comply with a court order was without reasonable excuse; and even where the elements of contempt are proved, discretion may militate against a finding of contempt. [ 144 ] The elements of contempt in this case have not been proved beyond a reasonable doubt. Ms. Marschlik has given detailed explanations in her affidavit for why parenting time was not afforded to Mr. Potts on the five dates complained of.

While some of her explanations might be viewed with skepticism, the standard of proof for a contempt finding has not been met. [ 145 ] Further, even if the elements were established, this is not a case where my discretion to impose a contempt order should be exercised. All of the missed days are now over a year old and thus historical in nature. Further, no purpose would be served by a contempt finding in light of the parenting order I have now made. Punishment is not the purpose of civil contempt. VIII. Costs of Transportation Services [ 146 ] Mr.

Potts’s application seeks reimbursement of the fees he paid to Inspiring Virtues for their services in transporting W between his parents’ residences to accommodate Mr. Potts’s parenting time. The costs were incurred because of the September 28, 2021 order which provided that Mr.

Potts would have unsupervised parenting time “with a supervising agency to be responsible for driving the Child back and forth,” and further provided that “the cost of driving supervision shall be paid by the Applicant in the first instance on a without prejudice basis.” The requirement for transportation of W remained in place until the order of February 4, 2022, when it was provided that “there shall be no requirement for third party transportation of the Child.” [ 147 ] The transportation costs were incurred because Ms. Marschlik alleged that W was unsafe in Mr.

Potts’s care due to his drug use and addictions, binge drinking and angry, aggressive behaviour. [ 148 ] The concerns stated by Ms. Marschlik have not been sustained by the evidence. I accept Mr. Potts’s evidence that he has not used drugs since October 31, 2020 and has never been charged with driving infractions related to drugs or alcohol. The drug tests confirm that well before the September 28, 2021 order imposing the requirement of a supervising agency to drive W, Mr. Potts had discontinued his use of illicit drugs. [ 149 ] Because the September 28, 2021 order made Mr.

Potts responsible for the charges of Inspiring Virtues only on an upfront, without prejudice basis, the final liability for costs was left to be determined at a later date. They are before me pursuant to the oral hearing order of January 24, 2022, para 1.(a)iii. I find Ms. Marschlik is responsible for those costs, in light of the evidence I accept, they should not have been imposed. [ 150 ] Ms. Marschlik, therefore, is directed to reimburse Mr. Potts in the amount of $2803.50 being the total of the invoices issued by Inspiring Virtues. IX.

Summary of Findings [ 151 ] For the reasons given, I have concluded that: a. Mr. Potts will have primary care of W, with Ms. Marschlik having parenting time on alternating weekends and with such other terms and conditions direct above and to be determined for a formal order; b. Mr. Potts’s application for a declaration that Ms. Marschlik is in civil contempt of court is dismissed; c. Mr. Potts’s application for reimbursement of the costs of supervised transportation for W is granted; and d. Ms.

Marschlik’s application to relocate W to Calgary is dismissed. [ 152 ] The parties may arrange an appearance before me to address the terms of a formal order, if they cannot agree, and to speak to costs. Heard on the 13 th and 14 th days of April, 2023 and the 15 th day of June, 2023. Dated at the City of Calgary, Alberta this 16 th day of June, 2023.

G.H. Poelman J.C.K.B.A. Appearances: Jena B. Colpitts for the Plaintiff Abimbola Delalu for the Defendant