FB v GM, 2023 ABKB 701

Court of King’s Bench of Alberta Citation: FB v GM, 2023 ABKB 701 Date: 20231208 Docket: FL10 06471 Registry: Red Deer Between: FB Applicant - and - GM Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice Susan L. Bercov _______________________________________________________

Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2. No person shall publish the name or photograph of a child or of the child's parent or guardian in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. I. Introduction [ 1 ] After a seven-year relationship the parties separated in 2013. I will refer to FB as Mom and GM as Dad. They have one child, SBM, who is now 12 years old. [ 2 ] For the first four years of SBM’s life, she resided at times with Mom, and at times with Dad.

In June 2017 a parenting order was granted giving Dad primary parenting. Dad was living in Red Deer. Mom was living in Manitoba. [ 3 ] In April 2020, Mom moved to Red Deer with her partner and SBM’s grandmother. From August 2020 to now the parties have been in constant conflict over parenting, involving the RCMP and Child and Family Services on many occasions. Numerous applications to vary parenting have been made.

Despite efforts over the last three years to hold an oral hearing to determine parenting, for various reasons, oral hearings that were scheduled did not proceed. [ 4 ] The current parenting order provides primary care to Dad with supervised access to Mom. Since approximately August 2023 SBM has refused to return to Dad’s care. She initially lived at a youth shelter. She is now couch surfing at various houses. Dad alleges that Mom is engaging in alienating behaviour and is responsible for SBM’s refusal to return to Dad.

Mom alleges SBM is not willing to live with Dad because of safety concerns in Dad’s house. [ 5 ] On September 15, 2023, Justice Slawinsky set this matter down for a three-day oral hearing commencing on November 28, 2023. The

Summary Trial Hearing Order (Hearing Order) directs me to determine the following issues: 1. What parenting regime is in the best interest of the child, specifically: a. Should Dad continue in the role of primary parent, or should that role be changed to Mom? b. Should Mom continue to be under supervised parenting, and if so on what terms? c. In relation to parenting time responsibilities, what other directions are necessary or appropriate to give effect to the parenting regime determined by the Court to be in the best interest of the child? 2.

What direction, if any, should be made with regard to child support obligations given that no formal application is before the Court? 3. Should either Mom or Dad be found to be in contempt of the Order of Justice Funk dated May 13, 2022? II. Procedure for the Hearing [ 6 ] The Hearing Order sets out in detail the procedure to be followed, and the evidence to be tendered. [ 7 ] Dad swore his Affidavit on June 29, 2023. With my permission Mom filed her Affidavit late on October 31, 2023. Each party elaborated and updated their Affidavit in chief.

Each party was cross examined. [ 8 ] The Hearing Order allowed each party to provide Affidavits from three support witnesses. Dad provided Affidavits from three witnesses. These individuals attended trial and were cross examined. Mom did not call any support witnesses. [ 9 ] In addition to the support witnesses, the Hearing Order allowed either party to call two individuals, Punham Dhaliwahl and Renee Woznesensky, who were employed with Child and Family Services and were involved with the family. Dad called Renee Woznesensky who testified in chief and was cross examined.

Mom attempted to call Punham Dhaliwahl but was unable to locate her. [ 10 ] The Hearing Order permitted either party to rely on the following Child and Family Services records: a. The unvetted Safety Assessment completed October 26, 2020; b. The unvetted copy of the disclosures respecting the May/June 2021 Child and Family Services involvement; and c. The January 2022 Child and Family Services involvement. [ 11 ] The Hearing Order directed that the PN7 Report prepared by Andrea Bailey shall be entered into evidence. Although the Hearing Order allowed either party to compel Ms.

Bailey to attend the hearing, neither party called her.

[ 12 ] Shortly before the hearing, both parties’ counsel at the time applied to be removed as counsel of record due to irreconcilable differences with their clients. I granted the applications. Dad retained another counsel to represent him at trial. Mom represented herself. [ 13 ] Upon being assigned to conduct the oral hearing, I became concerned that there were no witnesses, apart from the parents, who could provide the views of the child. In the circumstances, I concluded that the child should be given a voice at the hearing.

Given the lack of time to appoint counsel for the child and the need to proceed with the hearing and not adjourn, on my own motion, I granted an Order appointing counsel for the child. Legal Aid responded immediately with counsel available to participate in the trial. III. Position of the Parties Dad’s Position [ 14 ] Dad argues that he has been SBM’s primary caregiver since 2017. Until Mom moved to Red Deer in 2020, there were no issues with SBM. He had a good relationship with SBM. She attended school and was doing well. There were no behavioural concerns.

Dad offers SBM a stable home, a safe environment, structure, and routine. When Mom moved to Red Deer, Mom started a campaign of lies and false reports to Children’s Services and Police. Mom accused Dad of physical, emotional, and sexual abuse.

None of Mom’s allegations have been substantiated. [ 15 ] Dad argues that Mom has engaged in alienating behaviour by making false allegations against him, sneaking phones to SBM contrary to court orders, encouraging SBM to breach court orders by meeting with Mom and by attending Mom’s home, encouraging SBM to leave Dad’s home and stay with her, bribing the child with food and presents and exacerbating the child’s negative feelings, suggesting the child is suicidal. Dad believes Mom is not a healthy parent. Mom physically assaulted SBM.

Mom is not putting the welfare of SBM first but is involving SBM in Mom’s war to punish Dad. [ 16 ] Both parties understand that the test for determining parenting orders is what parenting regime is in the best interests of the child, considering all relevant factors. Dad’s position on what is in the best interests of SBM changed during the hearing. In Dad’s Concise Letter, relying on ID v DB , 2022 ABKB 831 , Dad argues that in the case, considering Mom’s unwillingness or inability to follow courts orders and refrain from contacting SBM, severe consequences are needed to protect the child.

Mom’s parenting time should be terminated for a period of six months to a year, with a possible gradual reintegration under supervision after a year. In closing argument Dad’s position is that he should have primary care with Mom having every other weekend for six months. After six months, if things are going well, the parties should move to one week on and one week off for one year. At the end of one year, if things are going well, Mom should have parenting during the 20 days Dad is working and Dad should have parenting time during his 10 days off.

If the order is not being followed, Mom’s parenting time should be suspended, and she should be incarcerated. Mom’s Position [ 17 ] Mom disagrees that she is alienating SBM. Mom has serious safety concerns leaving SBM in Dad’s care. Mom is concerned about Dad’s drinking, his anger, food scarcity in Dad’s home, and sexual abuse. Mom has involved the police and Children’s Services to protect SBM from these concerns. Mom’s position is that SBM refuses to return to Dad because of Dad’s anger management issues and because SBM wants more parenting time with Mom when Dad is working. [ 18 ] Dad works out of town.

He works 20 days on and 10 days off. Mom has concerns about the caregivers that have looked after SBM while Dad is away working. Both parties are very concerned with SBM’s lack of school attendance and whether she will pass this year. Both parties also have concerns about SBM’s behaviour at school and at home.

Mom argues that as she does not work, she can ensure that SBM attends school, help her with her homework, and meet with the school on a regular basis to address behavioural concerns. [ 19 ] To determine what parenting regime is in the best interest of SBM, it is helpful to review the history of care and some of the events of the last 10 years. IV. Chronology of Events and History of Care 2013 – June 2017 [ 20 ] When the relationship ended, SBM initially stayed with Mom in Manitoba. [ 21 ] At some point SBM went to live with Dad in Alberta.

It is not clear whether this is in 2015 or 2016. [ 22 ] The records from Child and Family Services indicate involvement with Child and Family Services both in Alberta and Manitoba. There are complaints made by Mom against Dad and complaints made by Dad against Mom. June 2017- October 2020 [ 23 ] On June 14, 2017, Dad applied for a parenting order. Dad was granted primary parenting in Red Deer. Mom was living in Manitoba and was granted specified parenting time. [ 24 ] In April 2020, Mom moved to Red Deer with her mother and Mom’s partner. SBM starting spending time with Mom after school and every other weekend.

During the summer, she spent weekdays with Mom. Dad ended Mom’s parenting time on August 7, 2020, when he required RCMP assistance to have Mom return SBM.

[ 25 ] On August 11, 2020, Mom made a report to Children’s Services raising concerns including physical and verbal abuse by Dad, that Dad drinks, and is mentally unwell. Mom hired a private investigator to collect evidence against Dad. [ 26 ] On September 17, 2020, Mom brought an application for shared parenting. Dad opposed the application. An order was granted giving Dad primary parenting and Mom parenting time on the weekend. This Order was an interim order pending an oral hearing set for December 2020. Unfortunately, the hearing date was lost because Mom missed the filing deadlines.

A new date in April 2021 was set. [ 27 ] On October 26, 2020, Children’s Services completed the Safety Assessment arising out of Mom’s August 2020 report. Dad admitted to Children’s Services that he sometimes drinks too much, and a safety plan was created. Dad told Children’s Services that many of Mom’s concerns have a basis in truth, however, the concerns are either out of context or embellished. As an example, Dad did acknowledge making a comment about putting a gun in his mouth.

However, he explained the context was he was getting frustrated with Mom and asked her if she would prefer him to put a gun in his mouth. Dad did acknowledge that a while ago he was depressed and got a prescription that he took for awhile but does not need it anymore. The assessment concluded by finding Mom’s allegations against Dad unsubstantiated. However, allegations of emotional injury by Mom were substantiated as SBM indicated frustration with her mother’s approach that is having a negative impact on the child.

November 2020 – December 2021 [ 28 ] In the winter of 2020/2021, SBM was telling Dad that she wanted her parents to get along and she wanted to see her mother more. Accordingly, rather than proceed with the oral hearing set for April 2021, in February, the parties negotiated an interim parenting order signed by Justice Price. The Order provided primary care to Dad. Mom had specified parenting and a right of first refusal. Dad agreed to waive more than $7,000.00 in child support arrears. [ 29 ] In March 2021 there was an incident where SBM was bleeding from a tooth extraction earlier that day.

Dad was intoxicated and fell asleep in SBM’s bed. SBM was not able to wake him. She went to the neighbour’s house for help. The neighbour called Mom. [ 30 ] On April 20, 2021, Mom reported this incident to Children’s Services. A Safety Assessment was completed August 6, 2021. SBM was interviewed in July 2021. At that time, she had been staying with Mom since approximately May 2021. SBM told the assessor that Dad was drinking too much and that Dad drinks almost a whole pack of beers every might by himself. SBM said that she prefers to live with Mom because she feels safer and her Dad’s drinking scares her.

Dad admitted that he drank too much and that he needs addictions counselling. The assessment concluded that the allegation of neglect and emotional injury by Dad is substantiated. In terms of what needs to happen in the future, the assessor notes that SBM needs a safe and sober caregiver who can attend to her needs. She also needs to feel loved and supported by both parents so that she can spend time with both without her parents fighting over her.

Provided Dad remains sober, it would be ideal if Mom respected the child’s wish to have contact with her father and help uphold the custody agreement. [ 31 ] By July 2021, SBM was still living primarily with Mom though the last court order provided primary parenting to Dad. Dad sought to enforce the Price Parenting Order. Mom cross applied for a change in parenting. The parties agreed to a PN7 with Andrea Bailey. They also agreed to an interim order that SBM would temporarily reside with Mom without prejudice to Dad’s status as recognized primary parent. [ 32 ] On December 14, 2021, Ms.

Bailey provided her final PN7 report. Her report was entered into evidence. Neither party called Ms. Bailey to testify. Ms. Bailey notes that it appears that SBM’s reports of the issues pertaining to her father and family are very similar to her mother’s reports and that it is plausible that Mom is negatively influencing SBM. Mom’s choice of words when talking with SBM impacted her view of Dad. During the process, Mom struggled to stay in the present and recognize improvements in areas of concern. Instead, Mom related back to past issues or Dad’s behaviours before the PN7 was implemented. Ms.

Bailey noted that Dad believes all issues are stemming from Mom’s controlling of SBM. He is concerned that he will lose SBM due to this behaviour. Dad demonstrated limited willingness to engage with Mom as he held significant anger and resentment towards her. Dad’s response pattern was rigid and extreme. Dad’s inability to move past the need to be right at times interfered with his ability to discuss interventions to assist in his relationship with Mom. During the intervention Dad attended for personal counselling to assist him in regulating his emotions. Ms.

Bailey notes that there was a marked change in Dad’s behaviours as the intervention proceeded after Dad attended counselling. [ 33 ] On December 15, 2021, Justice Dilts ordered a two-day oral hearing for May 24 and 25, 2022. In the interim Dad was granted specified parenting time in January. January 2022- December 2022 [ 34 ] On January 29 there was an incident at Mom’s house when SBM refused to comply with Mom’s direction about cleaning. The argument escalated into a physical altercation between Mom and SBM. Another report to Children’s Services was made.

As a result, on February 2, Justice Funk ordered Mom to have interim indirect parenting with calls and facetime. [ 35 ] On February 17, the Safety Assessment was completed by Renee Woznesensky. She noted that each parent strongly argues that SBM is not safe in the other’s care. She concluded that none of the allegations made against Dad can be substantiated. While Mom continues to allege that Dad has addiction issues, Dad provided a hair follicle drug test that was negative for alcohol or other substances except THC that was accounted for. Further, SBM denied seeing Dad drink since his birthday.

The assessment concluded that SBM’s statements about Mom’s physical abuse were inconsistent and that there was not enough information to meet the threshold to substantiate the allegations of physical abuse by Mom. Ms. Woznesensky found that intervention services were not required. However, both parents were advised of the importance of keeping their custody issues away from SBM as it may start to affect SBM’s emotional well being.

Mom was also cautioned on interviewing and recording SBM due to concerns for the emotional impact this may have on her. [ 36 ] On March 17, SBM left her friend’s house and returned to Mom’s house. Mom refused to return her.

[ 37 ] The parties were before Justice Gates on March 21 and 23. SBM was with Mom contrary to Justice Funk’s Order. Justice Gates adjourned the hearing on March 21 to March 23 to review the PN7. In between March 21 and 23 there was an incident at the Tim Hortons with SBM yelling and saying she did not feel safe with Dad while Mom recorded the event. When the parties returned before Justice Gates, he granted primary care and decision making to Dad pending the oral hearing scheduled for May 24 and 25. He imposed supervision of Mom’s parenting time. [ 38 ] On May 13, the parties were before Justice Funk.

Mom retained counsel on May 10, 2022. The parties agreed to adjourn the oral hearing to October 25 and 26. In the interim, Dad continued to have primary hearing and decision-making. Mom was granted specified supervised parenting time and telephone calls with SBM. [ 39 ] On October 25 the oral hearing did not proceed because of issues regarding Mom’s witnesses. Justice Bensler instead conducted a JDR that did not resolve the issues.

Justice Benlser adjourned the oral hearing to November 28 – 30, 2023 and granted an Order continuing the parenting regime set out in Justice Funk’s May 13 Order and adding some additional terms. January 2023 – June 2023 [ 40 ] A number of incidents occurred between January and June 2023 that led to further conflict, allegations by both parties, police involvement, and court applications. [ 41 ] In January SBM posted a concerning message about suicide on social media. Although Dad arranged to have SBM assessed for mental health concerns, Mom went to court to obtain a Form 8.

The assessment at the hospital indicated there were no self-harm concerns. [ 42 ] On April 5 during a sleepover party at Dad’s, while the caregiver at the time, DS, was out for a brief period of time, SBM and her friends posted pictures of their burning applied nail polish to social media. Mom called the police to attend for a welfare check. [ 43 ] DS observed Mom and her partner driving by Dad’s home on numerous occasions. On April 7, DS was startled by repeat knocking on SBM’s basement bedroom window. She called the police.

There are harassment charges against Mom that are proceeding through the court. [ 44 ] Dad’s evidence is that around April 15 the private investigator Mom hired contacted him to tell him that Mom made threats to stab Dad. Dad deposes that on April 17 Mom’s investigator contacted his lawyer raising concerns about Mom coaching SBM’s friends to say negative things about Dad and a concern about Mom abducting SBM. Neither party called the private investigator to testify. [ 45 ] On May 21, the police attended Dad’s home because Mom accused DS of assaulting SBM.

There was an incident that occurred between SBM and DS when SBM would not get off the call with Mom and complete her chores. The disagreement between SBM and DS escalated. DS testified that SBM assaulted DS. While DS raised her arm to strike SBM she did not. When the police attended, SBM was not harmed. [ 46 ] On May 22, while SBM was in a car with another caregiver, they were in an accident. The caregiver was charged with driving while intoxicated. Dad fired the caregiver. [ 47 ] These and other events led to a hearing before Justice Slawinsky where she granted the June 15, 2023, Hearing Order.

July – November 2023 [ 48 ] In August SBM was living with Mom, unsupervised, and refusing to return to Dad. [ 49 ] Mom made allegations that Dad was sexually abusing SBM. The parties appeared before Justice Loparco on August 17. Justice Loparco directed that SBM be returned to Dad on August 17, that Dad’s parenting shall be supervised, and that Mom shall file a Practice Note 5 Form forthwith. [ 50 ] The parties appeared before Justice Loparco again on August 25. Mom had not returned SBM to Dad, breached the Order requiring her parenting time to be supervised, and failed to submit a PN5 Form forthwith.

Justice Loparco ordered Mom to bring SBM to the Courthouse. She was returned to Dad at the Courthouse. Justice Loparco gave an order with further parenting terms. She referred the issue of whether Mom is in contempt to Justice Slawinsky. As soon as she was returned, she ran away. [ 51 ] On September 8 the parties appeared before Justice Slawinsky. Mom was found in contempt of Justice Loparco’s order for failing to return SBM and failing to have her parenting time supervised.

She was jailed for a period. [ 52 ] On September 11 there was another referral to Children’s Services for a Safety Assessment regarding allegations of sexual abuse by Dad. The assessment was completed on October 20, 2023. SBM reported an incident at Walmart when her father attempted to take her phone away, placing his hands down her pants. The assessment found that there was no evidence to support the allegations of sexual abuse by Dad. During the assessment Mom denied speaking negatively about Dad to SBM and further denied attempting to alienate SBM from her father.

Dad admitted to being verbally aggressive towards SBM and that he must dial his verbal tirades back in order not to scare SBM. Since August SBM has been staying with friends until Dad served the friend’s parents with notes threating legal action. SBM then moved to staying at a youth centre. The assessment notes that Dad has become extremely oppositional with RCMP, Children’s Services, and the school and is placing SBM at risk by continuing to demand she return to his care, not recognizing his behaviours are negatively impacting SBM, and creating more fear and separation.

The writer expresses the view that SBM is caught in the middle of her parents’ custody battle for four years. Both parents have made discouraging comments about the other parent, SBM has been manipulated by both parents, and is believed to be coached regarding incidents that have not occurred to alienate her from her father. As a result of the conflict SBM has developed anxiety and has reported frequent panic attacks. Forcing her to choose one parent over the other is placing her at risk of behaviours such as self-harm, mental health issues, suicide, drug use, and involvement with

unhealthy individuals and criminal activity. V. Has Mom Engaged in Parental Alienation? [ 53 ] Dad argues that the reason SBM does not want to live with him is all Mom’s fault. Over the last four years she has engaged in a relentless campaign of false lies and accusations about him, coaching SBM to repeat these lies and accusations. [ 54 ] Mom argues that the reason SBM does not want to live with Dad is because of Dad’s behaviour that causes SBM to fear him. [ 55 ] In LS v MK, 2023 ABKB 487 , at paras 34 and 35 , Justice Feasby explains the difference between alienation and estrangement.

Alienation is a breakdown in the relationship between a child and the disfavoured parent primarily attributable to the conduct of the favoured parent. Estrangement is a breakdown in the relationship between a child and the disfavoured parent that is primarily caused by factors other then the conduct of the favoured parent.

As Justice Feasby notes, there are cases where the breakdown of the relationship is a result of both alienating behaviours by the favoured parent and a child’s rational aversion to the conduct of the disfavoured parent. [ 56 ] Parental alienation is a legal concept, as opposed to a mental health diagnosis. As such, expert evidence is not required to make a finding of alienation: ID v DB . [ 57 ] Attached to both the ID and LS decision is an Appendix containing a list of indicators of parental alienation. I agree with Dad that Mom has engaged in some indicators of parental alienation.

Since at least 2020, if not before, Mom has been relentless in making significant and serious allegations against Dad. Some of the allegations have a basis in truth. For example, the concern about Dad’s drinking. The Safety Assessment done by Children’s Services, and the admissions Dad made to Children’s Services, persuades me that Dad had a drinking problem in 2020. I am also persuaded by Dad’s evidence, that is supported by his support witnesses, and his drug and alcohol test, that Dad quit drinking shortly after the August 20, 2020, incident.

Notwithstanding, Mom continues to claim that Dad drinks telling SBM that Mom does not think Dad will stop drinking and that she should not get her hopes up. This is alienating behaviour. [ 58 ] While some of the allegations by Mom have a basis in truth, others do not. Mom has alleged concerns about food scarcity in Dad’s home for years. Mom’s allegations are based on SBM saying at various time that she is hungry. Mom jumps to the conclusion that there is a food scarcity problem at Dad’s, without considering other more reasonable explanations. Mom then rushes foods SBM likes to the school or Dad’s house.

This communicates to SBM that she is not properly cared for by Dad. I am satisfied from the evidence of DS that there is food at Dad’s. However, sometimes SBM is not hungry when the meals are served, and sometimes she does not care for what is served. [ 59 ] Mom’s allegations of sexual abuse are concerning. They are based on Dad sleeping with SBM when she was younger. Dad has maintained for years that this no longer occurs. SBM sleeps in her own room. I am satisfied from Dad’s evidence, supported by DS’ evidence, that Dad does not sleep with SBM and has not for years.

Mom refuses to believe this. [ 60 ] Mom’s allegation of sexual abuse by Dad in September 2023 is also concerning. Dad acknowledged during cross examination that there was one occasion at the school, and not at Walmart, where SBM refused to comply with Dad’s direction to give him her cell phone. She put the phone in her bra. Dad reached in to retrieve the phone. While this is not appropriate, it is clear from the circumstances that Dad’s touching was not for a sexual purpose. [ 61 ] Mom has also spent a considerable amount of time and effort over the past four years trying to prove abuse by Dad.

Mom hired a private investigator to investigate Dad. Mom recorded interactions involving Dad. Mom gave SBM phones, telling her to keep them secret, so SBM could contact Mom when she was with Dad. Mom encourages SBM to text Mom when she is with Dad to tell Mom things about what is happening during SBM’s time with Dad. All of this is alienating behaviour. These behaviours communicate to SBM that she is not safe in Dad’s care. [ 62 ] SBM exhibits some indicators of parental alienation. She does have a stronger, but not necessarily healthy psychological bond with Mom than Dad.

Her reaction and perceptions are at times unjustified or disproportionate to Dad’s behaviours. She appears willing to talk openly to others about Dad’s perceived shortcomings. However, the circumstances in this case are different than many alienation cases. SBM is not saying she wants no contact with Dad. Before she ran away from Dad’s, she left him a note saying she loved him and was sorry. She is concerned with Dad’s family, in particular her paternal grandfather who is ill. She loves both her parents. She wants contact and a relationship with both parents.

However, currently she wants to spend more time with Mom. She desires reconciliation if Dad addresses his anger issues. [ 63 ] I disagree with Dad that the reason SBM does not want to return to Dad is all Mom’s fault. Dad’s conduct has contributed to the current situation. Dad had a drinking problem prior to the fall of 2020. As the incident in March 2021 indicates, this impacted his ability to care for SBM. The evidence is overwhelming that Dad has significant anger management issues.

Dad’s difficulty in regulating his anger is noted in the PN7, the Safety Assessments conducted by Children’s Services, and the witnesses Dad called. Dad himself acknowledged in cross examination that he has an anger management problem and that he yelled at SBM on a daily or regular basis. He also yelled at the police, the doctors, school employees, and Children Services employees. Dad’s anger and difficulty regulating his anger was very apparent during his testimony. While Ms.

Bailey indicates in the PN7 report that she noticed a significant change after Dad attended personal counselling, in my view, Dad’s anger remains a significant problem. [ 64 ] Respect for authority, chores, rule following, and discipline or consequences are very important to Dad. At times, this clouds his judgement about what is in SBM’s best interest. The cell phone incident, that Dad acknowledged occurred, at the school and not Walmart, is one example of this.

While I am persuaded that grabbing her phone from her bra is not sexual abuse, it is an indication of the extent that Dad will go to impose his will. [ 65 ] Currently, SBM is coach surfing at other people’s homes. She left the youth centre because they tried to persuade her to return

to Dad. She is not going to school. Her attendance is about 37%. She is at risk of failing this year. She has put herself at risk by living outside the home at age 12. This is a case where the conduct of both parents contributed to the current situation. There is ample blameworthy conduct by both parties. VI. What Parenting Regime is in the Best Interests of SBM? [ 66 ]

Section 18 of the Family Law Act directs that in determining what is in the best interests of SBM, I must ensure the greatest possible protection of the child’s physical, psychological, and emotional safety and consider all of the child’s needs and circumstances including those specifically listed. Dad’s Capacity to Protect the Child and Meet Her Needs [ 67 ] The assessments from Children’s Services all conclude that there are no protection concerns in Dad’s care requiring Children’s Services involvement by way of an apprehension order or otherwise.

To his credit, I find that Dad quit drinking shortly after the March 2021 incident. While Dad acknowledges using cannabis in the evening, there is no evidence that his use impairs him from caring for SBM. I am satisfied that there is no food scarcity issue at Dad’s. I am also satisfied that Dad did not physically or sexually abuse SBM. In

summary, I agree with Children’s Services that there are no protection concerns in Dad’s care requiring Children’s Services intervention. [ 68 ] Notwithstanding that there are no protection concerns requiring action by Children’s Services, I do have some concerns about Dad’s ability to meet SBM’s needs and protect her emotional safety. [ 69 ] SBM’s counsel, conveyed to me that SBM says Dad raises his voice and that scares her. Dad is angry, SBM feels she makes Dad angry, and he is always mad at her.

While I am alive to the fact that this is counsel’s submissions, I accept these submissions because they are entirely consistent with the evidence I heard. [ 70 ] Dad’s anger towards Mom and the importance he places on rules, discipline, and consequences is concerning. Dad would rather SBM live in a shelter or couch surf than live with Mom who accuses Dad of sexual abuse and whose ideology is that we break all the rules until we can make our own rules. Dad wants me to direct that Mom be jailed if she does not follow orders.

The reason he wants this is to knock Mom off her high horse and to show SBM that you need to follow rules. Dad is not able to see how jailing Mom might impact SBM. Dad’s anger towards Mom and the significant importance he places on rule following does cloud his judgment at times on what is in SBM’s best interests. [ 71 ] What SBM needs most right now is stability. She needs a stable place to live, that is safe, and she needs to go to school.

Living at a youth centre and coach surfing puts her at high risk. [ 72 ] Dad’s position on what his parenting time should be if SBM lives primary with Mom concerns me that he is basing his position on what he wants and not on what is in the best interests of SBM. When asked what parenting time he wants if SBM lives with Mom, he responded that he raised her and that he should get at least 50%. When asked whether he would be agreeable to 20/10, he indicated he did not think that was fair. What parenting arrangement is in SBM’s interests is not about what is fair to the parents or what the parents want.

It is about what arrangement works best for the child, considering all circumstances. [ 73 ] One important circumstance is that Dad works out of town, 20 days on and 10 days off. When he is working, he sometimes does not come home but stays at the worksite. When he does come home, he arrives at about 6:30 p.m. but is gone again at about 4:30 a.m. While Dad has had primary care under court orders since 2016, Dad agreed that SBM has had many different caregivers. Dad also agreed that SBM has spent more time with caregivers than with Dad or Mom. Dad currently has no caregivers to look after SBM.

While he is prepared to come home every evening during his 20 days on, he would need to leave at 4:30 a.m. in the mornings. There would be no one at the house to ensure SBM goes to school. Mom’s Capacity to Protect the Child and Meet Her Needs [ 74 ] The assessment conducted by Children’s Services in February 2022 regarding the allegation of physical abuse by Mom concluded that the allegations could not be substantiated and that intervention services are not required. Dad also reported concerns about Mom using drugs. Mom suffers from fibromyalgia and uses cannabis.

The evidence does not persuade me that Mom uses drugs in a manner that impacts her ability to parent. [ 75 ] Mom’s parenting time became subject to supervision in February 2022 because of the allegation of physical abuse. Notwithstanding that the Safety Assessment found that the allegations could not be substantiated, Mom’s parenting time has remained supervised.

This has caused problems for Mom in accessing time with SBM as Mom does not work and finances are very tight. [ 76 ] Dad believes that it is necessary to continue supervising Mom’s parenting time to ensure she is not manipulating SBM to self- harm or miss school or run away from Dad. [ 77 ] I disagree that Mom’s parenting time should continue to be supervised. The evidence does not persuade me that Mom is manipulating SBM to self-harm or miss school. I am satisfied that Mom is concerned about self-harm, and the amount of school she is missing. I do not accept that Mom has encouraged these behaviours.

Dad called MK, who supervised Mom’s parenting time. MK acknowledged that Mom’s visits with SBM were good and there were occasions when MK would tell Mom her discussions were good. [ 78 ] While I do not accept that Mom is encouraging self-harm and missing school, I do find that Mom has not encouraged a

positive relationship between SBM and Dad, that Mom has not encouraged SBM to comply with court orders, and that Mom’s conduct is causing emotional harm to SBM. Mom has been told repeatedly by Children’s Services employees and by Ms. Bailey that her conduct in continuing to make reports with information that is out of context or embellished is causing emotional injury to SBM. To date Mom has not been willing or able to hear how this is damaging to SBM.

This must stop. [ 79 ] While Mom says that she wants to work with Dad to co-parent and she wants SBM to have a good relationship with Dad, her actions speak otherwise. Mom has inappropriately shared information with SBM that puts Dad in a negative light. Mom has made inappropriate comments to SBM that puts Dad in a negative light. Mom’s continual reporting of issues to Children’s Services, calling the police for welfare checks, and calling SBM when she is at Dad’s to check in, sends a message to SBM that she is in danger. This is not in SBM’s best interests. [ 80 ] In

summary, I find that there are no protection concerns with either parent requiring intervention. While both parents have been under supervision orders at times, I find that supervision of either parties’ parenting time is not necessary. The parties have been fighting each other for years. The innocent victim of this war is SBM who is in the middle. Both parties have engaged in conduct without considering how this conduct impacts SBM. I have concerns about both parties’ ability to make decisions and act in the best interests of SBM. This must stop.

It is time to switch the focus back to parenting SBM in a manner that does not place her in the middle, that allows her to be free to enjoy a relationship with each parent, and that meets her needs. Views of the Child [ 81 ] SBM’s views were provided to me through her counsel. SBM has watched her parents fight for years. She feels caught in the middle and desperately wants the fighting to stop. She has seen both parents deal with problems by fighting, threatening, and bullying. She is very clear about what she wants now. While she wants to spend time with both her parents, she wants to spend more time with Mom.

The more barriers that are set up to this, the more she will do to get there. [ 82 ] SBM raises concerns about Dad’s anger. She very much wants Dad to work on his anger as it scares her. She raises concerns about some of her caregivers. She hates her current school and wants to change schools. [ 83 ] SBM wants to live with Mom during the 20 days Dad works. She wants to live with Dad during his 10 days off, but only after he completes counselling or courses for anger management.

Until then, she wants to see Dad during his days off after school until after supper. [ 84 ] SBM has the right to a voice in these proceedings. While she is not the decision maker, in my view, her wishes should be given considerable weight for three reasons. [ 85 ] The first is that there is a reasonable and understandable rationale for her wishes. Dad has anger management issues. While Dad has had primary care since at least 2017, the reality is that SBM has primarily been cared for by other caregivers, due to Dad’s work schedule. There have been issues with some of the caregivers.

It is understandable that a child would prefer to be cared for by a parent who loves her rather than third party caregivers. [ 86 ] The second reason why her views should be given significant weight has to do with her needs in the current circumstances. SBM has not been going to school. Her attendance is at 37%. She has switched schools several times. There are behavioural problems at school. She needs to find a stable school that she will attend and work on catching up and her peer relationships.

Due to his work schedule, 20 days of the month, Dad is not able to take her to school to ensure she attends, and liaison with the school during the day to deal with any behavioural problems. Mom can do this and states that she is willing to do this. Mom is also willing to enlist the help of tutors and assist SBM in ensuring she completes her assignments.

SBM indicates she will attend school if she is allowed to change schools. [ 87 ] The third reason why SBM’s views should carry significant weight is that, as noted in LS v MK , children who are not happy in a parenting arrangement can resist that arrangement despite anything a parent or this Court decrees. There is nothing to stop SBM from leaving Dad’s care. She has done so. I am persuaded that she will continue to do so. Parenting orders that do not incorporate her reasonable wishes serve only to leave her without a home and place her at risk. This is not in her best interest.

Conclusion [ 88 ] Considering all factors, I conclude that it is in the best interests of SBM to reside primarily with Mom. Dad shall have parenting time during his 10 days off. Initially, until Dad completes some anger management counselling, his parenting time will not involve overnights. Once he completes anger management counselling, his parenting time will include overnights. [ 89 ] It is imperative that these parties gain appreciation for how their conduct is impacting SBM and how continuing down the same path puts SBM at significant risks.

I am directing the parties to attend courses to assist them in gaining this appreciation. [ 90 ] It is also imperative that the fighting between the parties, that SBM has been exposed to, including complaints to Children’s Services and calls to police for welfare checks must end. What SBM needs right now is stability. She needs reasonable rules to follow in both homes, reasonable consequences for failing to comply, and support and assistance in complying. She also needs to feel free to have a positive relationship with both parents.

I am making directions to assist the parties to reduce the conflict, including directing the parties to engage with a parenting coach. The parenting coach will assist the parties in developing some consistency in both homes and developing ways the parties can communicate and address concerns they have, without calling the police or Children’s Services. [ 91 ] The following are my directions regarding the issue of parenting: • Both parties will complete the course Parenting After Separation for Families in High Conflict, the Brain Science online course

through Alberta Family Wellness, and a course about parenting teenagers. • Dad will complete an anger management program/counselling. • Mom will have primary care during the 20 days of Dad’s work schedule. • Dad will have parenting time during his 10 days off work. Until Dad completes an anger management program/counselling Dad’s parenting time during his days off will be after school until 7:30 p.m. and on days where there is no school, from noon - 7:30 p.m.

Once Dad completes an anger management program or counselling, his parenting time will increase during his 10 days off from Friday after school until Sunday at 5:00 p.m. with increased parenting time after six months to the full 10 days, including overnights. • During the 20 days in Mom’s care, Dad shall have video or phone calls on Monday, Wednesday, and Friday at 7:30 p.m. to be initiated by Dad. • During the 10 days in Dad’s care, Mom shall have video or phone calls on Monday, Wednesday, and Friday at 7:30 p.m. to be initiated by Mom. • SBM shall attend school on a regular basis.

Both Mom and Dad shall ensure her attendance when SBM is in their care. • Considering the circumstances over the last several months, I agree that it is in the best interests of SBM to change schools for a fresh start.

Mom may enroll SBM in a different school, without Dad’s consent, if the school district is able to accommodate that. • Neither parent or any family member or partners will speak in a defamatory or negative fashion about the other parent when SBM is present or within hearing distance. • Neither parent or their family members or partners shall use any physical discipline with SBM. • Neither parent shall be under the influence of non-prescription drugs or use alcohol or marijuana to the point of impairment when in a caregiver role and both parents will ensure that SBM is not exposed to individuals who are impaired by drugs or alcohol. • Both parents will ensure SBM answers the calls at the time directed unless SBM agrees with the parent receiving the call to adjust the date or time. • Mom shall provide Dad with SBM’s phone number. • During Dad’s parenting time, other than the set parenting calls, Mom shall not interfere with Dad’s parenting time by calling or texting SBM, by attending at or near Dad’s home, by calling police for welfare checks, or in any other manner. • The parties will engage a parenting coordinator to assist the parties in developing a parallel parenting plan. [ 92 ] The parties did not address parenting during the holiday season.

I have no information on Dad’s work

schedule during the holidays or the parties’ plans. I direct Mom, Dad, and SBM to work out an arrangement during the holiday season that allows SBM to spend time with both Mom and Dad. [ 93 ] The parties did not address decision making. As a change of schools needs to be done right away, I am providing Mom with sole decision-making regarding schooling for the time being so that a transition to a new school can hopefully be worked on by the new year. I am reserving my decision on all other decision making. I am directing the parties to work with the parenting coordinator to reach agreement on decision making.

If the parties are unable to reach agreement on decision making after working with the parenting coordinator, the parties may approach me. Decision making on all issues other than schooling will be joint, until the parties reach agreement or I render a decision. [ 94 ] It is normal and to be expected that for various reasons and as circumstances change this

schedule will need to be adjusted. Both parties must be flexible in agreeing to changes that are in the best interests of SBM. It is critical that everyone; Mom, Dad, and SBM comply with my directions. If there are issues, the solution is not to call the police, call Children’s Services, disobey my directions, or run to court to make applications. The solution is to work together, and with the parenting coordinator, to agree to a plan that is in the best interests of SBM.

Mom and SBM must understand that there will be consequences for failing to abide by my directions, including amending the parenting arrangement. I will seize myself for the next six months with applications to deal with parenting issues. VII. Child Support [ 95 ] Neither party filed an application for child support, ongoing or retroactive. Neither party led any evidence on the issue of child support. At trial, Dad was still waiting to receive Mom’s financial disclosure. [ 96 ] It is not possible for me to determine child support with no applications and no information.

Accordingly, I am adjourning all child support issues. [ 97 ] Ongoing child support, particularly s. 3, should not be complicated. If the parties are not able to agree, I will hear an application from Mom for ongoing child support. [ 98 ] For retroactive child support, if the parties are not able to work this out, they should proceed to set down a Special Chambers application. I am not seizing myself of issues involving retroactive child support.

VIII. Contempt [ 99 ] The Hearing Order directs me to consider whether either party should be found to be in contempt of the Order of Justice Funk dated May 13, 2022. [ 100 ] Both parties allege that the other breached Justice Funk’s Order. [ 101 ] During argument Mom agreed to abandon her application for contempt. This is a step in the right direction. [ 102 ] Dad argues that Mom knowing, and intentionally, breached Justice Funk’s Order in many ways. Dad seeks a finding of contempt with a remedy of incarceration. [ 103 ] Some of the conduct Dad alleges is contemptuous, is not precluded by Justice Funk’s Order.

For example, giving SBM phones and contacting SBM’s friends. However, there is some conduct by Mom that I am satisfied is a clear breach of the Order. There is evidence, that I accept, that on at least one occasion Mom was calling SBM over 23 times during the middle of the night. On another occasion, DS found a tablet under SBM’s pillow containing conversations with Mom. Mom engaged in this conduct intentionally, knowing that it breached the Order. I find Mom in contempt of Justice Funk’s Order. [ 104 ] I have a broad discretion in terms of the consequences to Mom of her breaches.

While I agree that there must be consequences for breaching court orders, I must also consider the impact on SBM of jailing Mom considering that SBM will be residing primarily with Mom. In these circumstances, balancing both considerations, I conclude that the consequence for Mom’s contempt will be incarceration for five days. Implementation of this sentence will be suspended for six months and may be suspended indefinitely depending on Mom’s future compliance with my directions.

If the matter is brought back before six months on the issue of reversal of primary care due to Mom’s failure to comply with these directions, I will consider lifting the suspension at the same time. [ 105 ] Justice Slawinsky found Mom in contempt. A fine of $5,000.00 was issued, with Mom paying $200.00 per month. Mom asks me to reverse Justice Slawinsky’s Order as Mom cannot afford to pay $200.00 per month and care for SBM. I decline to reverse Justice Slawinsky’s Order. However, at the conclusion of oral argument I suspended Mom’s payments until my decision. [ 106 ] There is no current order for child support.

The parties will need to negotiate ongoing child support or bring an application before me for ongoing support. Until child support is paid, I am concerned that Mom has sufficient funds to care for SBM. Accordingly, I suspend Mom’s payments until Dad commences paying child support.

Once that happens, the suspension will be lifted, and Mom will continue to pay $200.00 per month until the fine is paid off. [ 107 ] The parties shall report back to me in six months’ time regarding progress on complying with my directions. [ 108 ] The issue of costs is reserved for six months. [ 109 ] I want to acknowledge the assistance of Legal Aid, and especially Ms. Doyle. Legal Aid was asked to appoint counsel for SBM for the hearing only days before the hearing commenced. Ms. Doyle agreed to represent the child and brought herself up to speed within a week. I am very grateful for her assistance.

Heard on November 28 – 30, 2023. Dated at the City of Edmonton, Alberta this 8th day of December 2023. Susan L. Bercov J.C.K.B.A. Appearances: Self-Represented Litigant FB, Applicant Julia Ibanescu For the Respondent GM

Andrea Doyle Legal Aid Alberta For the Child