Johnston v Matthews, 2023 ABCJ 219

In the Alberta Court of Justice Citation: Johnston v Matthews, 2023 ABCJ 219 Date: 20231020 Docket: FF021002950 Registry: Grande Prairie Between: Jayanah Jesse Darlene Phyllicia Johnston Plaintiffs - and - Cory Dale Matthews Respondent Decision of the Honourable Assistant Chief Justice D.R. Shynkar Introduction [ 1 ] Ms. Johnston is a parent of Serenity May Darlene Jean Johnston-Rivers, born Feb 22, 2010, and of Tianna Brittney Donna Matthews, born Nov 6, 2017, ages 13 and 5 at the time of trial. Mr. Matthews is a step-parent and Guardian of Serenity, and a parent of Tianna.

The biological father of Serenity has not been part of her life, nor part of these proceedings. [ 2 ] Ms. Johnston lives in Whitecourt; Mr. Matthews lives in Grande Prairie. The parties each feel that it is in the girls’ best interests to reside with them and to have parenting time with the other parent on weekends and holidays. [ 3 ] The parties agreed to the terms of a Parenting Order granted on February 9 th , 2023, which provided for shared parenting, with primary residence to rotate yearly, and the non-residential parent to have generous parenting time. This plan collapsed entirely in the ensuing months: Mr.

Matthews, with whom the girls were to reside for the 2023 school year, suffered with substance abuse issues resulting in the placement of the girls with his parents briefly, and then with Ms. Johnson; the parties have subsequently been completely at odds over where the children should reside and what exactly has transpired at various times since the spring. Clearly, a change in circumstances requiring judicial review of the parenting regime has occurred; this issue was not argued by either party, and such argument was unnecessary in light of the evidence.

Evidence Generally [ 4 ] I heard from the parties, as well as from Ms. Lawn, a friend of Ms. Johnston, Ms. Cook, a former partner of Mr. Matthews (called by Ms. Johnston), and Mr. Matthews’ father, Barry Martin. I also had reference to a “Voice of the Child” report prepared by Ashley Sabados, as well as to character reference letters from a handful of people (two of whom, Ms. Cook and Mr. Martin, were called as witnesses). [ 5 ] As I commented to the parties during the course of the trial, I am in these proceedings prepared to consider all of the materials provided, but I assign the weight I feel is appropriate.

The character references for which the authors were not presented as witnesses I do not ignore, but I do assign them less evidentiary value than those for whom the witness was presented; nevertheless, I do assign significant evidentiary value to Ms. Sabados’ report, on the basis that neither party took issue with it, and it was prepared by a qualified professional.

I assign the most evidentiary value to the oral evidence of the witnesses presented, including the parties. [ 6 ] The parties were in a relationship for a number of years, marked sporadically with difficulties with substance abuse and abusive behaviour. In 2019, Child and Family Services were involved, and the children lived with Mr. Matthews’ parents for a few months. Mr. Matthews served a large portion of a 4-year sentence for possession of a controlled substance for the purpose of trafficking near the beginning of the relationship, and while he and Ms.

Johnston have expended very considerable efforts in relation to recovery from addiction/substance abuse over the years, it has been a recurring issue in their relationship and subsequent to their breakup. [ 7 ] Notwithstanding these challenges, the parties understand and respect their parental obligations toward these children and have generally worked hard to see that their needs are met and their best interests served.

From time to time, they have co-parented reasonably well, which led to the Consent Order early in 2023, providing for a yearly residential rotation and generous parenting time they clearly believed they could arrange between themselves by agreement (as opposed to having it specified by the Court). The girls were anticipated to remain with Mr. Matthews in Grande Prairie for the balance of the 2023 school year, and then go to Ms. Johnston in Whitecourt for the 2023-2024 school year. [ 8 ] Substance abuse by Mr.

Matthews early this spring, whether that is most appropriately characterized as a slip or a relapse, led to the children going into the care of Ms. Johnson by informal agreement. What had been a promising situation entailing respect and cooperation between the parties rapidly dissolved into distrust and anger, and a backing away by both from the notion of shared, cooperative parenting with rotating residences, at least in the near term. Ms. Johnston is not convinced that Mr. Matthews is sufficiently sober and mentally stable to have the girls in his care, and Mr. Matthews is convinced that Ms.

Johnston has been caught up in a vendetta orchestrated by his previous partner (subsequent to Ms. Johnston), Ms. Cook, and further, that the girls are better off in his care than in the care of Ms. Johnston. [ 9 ] Neither parent is in a position to go too far in allegations concerning the parenting abilities or suitability of the other, given that each consented to a regime involving each parent having the girls in their care for a year at a time.

That inclines me to somewhat discount some of the more minor concerns expressed by each regarding such things as how much they make themselves available for the children, how attentive they are to their needs, and various complaints about their behaviour. As one example, I make nothing of Mr. Martin’s report that Ms. Johnston, while pregnant with Tianna, apparently commented that she “isn’t a kid person,” or words to that effect. I am also mindful of the obvious antipathy of Ms. Cook toward Mr.

Matthews. [ 10 ] With whichever parent, in whichever location, these children reside, there will be both advantages and drawbacks. I have considered all of them, including those I consider so minor as to be all but ignorable in the big picture, but what looms largest in all of this is the potential for negative consequences for the girls arising from the substance abuse, or even potential substance abuse, of the parents, as well as the ongoing risk of family violence. And currently, there is a very high level of dysfunction in the parties’ ability to trust one another and work cooperatively.

Considerations Generally [ 11 ] Some of the considerations relevant to the children’s best interests do not point firmly in one direction or another. Grande Prairie is a larger centre than Whitecourt, and therefore has more services and amenities, and more of those that are specifically geared towards children. At the same time, Whitecourt is not bereft of programs and services for children, nor is their any reason to suspect its schools are of lower quality (although they may well not offer all of the same programs).

In Grande Prairie, the girls live in town, while in Whitecourt they are on an acreage of some variety, with horses. There are advantages and disadvantages to both: living out of town may be isolating (as Mr.

Matthews noted), but it may also be advantageous in terms of monitoring the whereabouts and behaviour of children and teenagers, for example. [ 12 ] In some senses, this could be considered a “mobility” or “relocation” case, as considered by the courts in such cases as Barendregt v Grebliunas , 2022 SCC 22 , although these parents were already living in different communities prior to this hearing, both had anticipated that to continue, and had agreed to a sharing of the parenting time between them, as noted above.

The “non-exhaustive list” of considerations and factors set out in paragraphs 153 and 154 of that decision are relevant here, and I consider them. [ 13 ] In each location, the children have some family and community connections, and obviously those will increase and develop over time as the children reside in either location. At this point, the girls have spent more time in Grande Prairie, so one might reasonably expect their social connections here to be more well developed. Mr.

Matthews has a large family in the Grande Prairie area, although there was little specific evidence about close connections between the girls and family members other than his parents and a sister. Ms. Johnston has family and community supports in Whitecourt, and that is why she moved there in the first place, although those are not more extensive or supportive than those available to Mr. Matthews in Grande Prairie. The parties, together or apart, lived in a number of communities previously in their relationship, including Ft. St.

John, Edmonton, Mayerthorpe, and Evansburg. [ 14 ] I do not overlook the fact that Mr. Matthew’s parents have provided foster care for over 300 children, and continue to act as

foster parents, which would suggest that they are a particularly valuable resource and source of support for him. But neither can I ignore that they have indicated that they are prepared to provide limited assistance, given their existing commitments to other children. For example, when the children were placed with them early this year after Mr. Matthews’ relapse/slip, they promptly insisted that Ms. Johnston retrieve them and care for them; they took the quite reasonable position that at least one of the two parents should be caring for them. I note in passing that I accept Ms.

Johnston’s evidence that she was not at that time expecting to have the children in her care, had work commitments, and therefore had to arrange for someone else to retrieve the children and briefly care for them; in that context, I make little of the complaints of Mr. Matthews and his father of “a stranger” showing up to retrieve and care for the girls. [ 15 ] Serenity’s wishes are of consequence. Tianna, at 5, is not developmentally able to express wishes to which this Court can give effect. Both children love their parents and want to spend time with them; that is abundantly clear.

Tianna would like alternating days with each parent, and found it difficult to understand why that would be unworkable. Serenity would like to live in Grande Prairie, although the primary basis for that preference, according to the “Voice of the Child” report, was a desire to continue her Grande Prairie friendships, as opposed to any specific concerns with residing with her mother or specific desire to live with her father. That is not at all an unreasonable approach for a 13-year-old. As Mr.

Martin commented, Serenity has moved between schools various times already, from which I infer that she is familiar with the challenges of fitting into new communities and new schools, and would prefer stability. Parental Sobriety and Violence [ 16 ] The parties have different versions of specific past events of violence and dysfunction in their relationship, and in their interactions during this past year. That is somewhat to be expected.

Both acknowledge serious and long-term substance abuse issues, but it is also clear on the evidence that both have engaged in dedicated, long term efforts at achieving and maintaining sobriety and general mental health. I am satisfied on the evidence that to date, the substance abuse issues experienced by Mr. Matthews have been considerably more serious and long-standing than those experienced by Ms. Johnston. I am also satisfied on the evidence that, without putting too fine a point on it, the sobriety of Ms. Johnston over the past year or so has been more reliably consistent than that of Mr.

Matthews. [ 17 ] A credibility assessment of the witnesses, and particularly the parties, necessarily plays a role in my assessment of the evidence. I found Ms. Johnston’s evidence to be straightforward and direct. When it was appropriate to concede something, she did. When it was appropriate to give Mr. Johnston credit for his behaviour or his value as a parent, she did. She generally took responsibility for her own behaviour. I am not much concerned that her testimony was coloured by the influence of Mr. Matthews’ most recent ex- partner, Ms. Cook. While Ms. Cook clearly does not think much of Mr.

Matthews, to put it mildly, I see her as providing support and validation for Ms. Johnston more than anything else, and I bear in mind that Ms. Johnston’s relationship with Mr. Matthews was considerably longer and of considerably greater emotional consequence. [ 18 ] Mr. Matthews’ credibility suffered as a result of his behaviour in the courtroom, as well as the fashion in which he addressed, or did not address, questions posed to him.

He was by turns angry, argumentative, flippant, sarcastic, glib, apologetic, tearful, impatient, and needed to be told repeatedly and often to stop talking, stop interrupting others (including the court), and listen. At many points, his presentation was that of a much younger person, which is to say decidedly immature and self-centered. [ 19 ] I do not lose sight of the fact that testifying in court is stressful, and witnesses often find it difficult and emotional; I am also aware that counsel in cross-examination may attempt to “push a witness’s buttons,” and some of that occurred here. But questioning by Ms.

Johnston’s counsel was neither unreasonably aggressive nor unfair, and frankly, the “button pushing” yielded significant results even when it was rather gentle. Moreover, Mr. Matthew’s behaviour and general demeanor was reflective of the descriptions of his habitual behaviour, presentation, and approach to conflict as described by Ms. Johnston in her evidence (and by Ms. Cook in hers, although I place less weight on Ms. Cooks’ evidence, given the short duration of that relationship and the obvious antipathy between she and Mr. Matthews). [ 20 ] Ms. Johnston’s evidence was along the lines that Mr.

Matthews’ behaviour at times of conflict between them was aggressive, demeaning, overbearing, vindictive and manipulative. His behaviour in the courtroom lent significant credence to that testimony. To his credit, Mr. Matthews apologized to the court on the morning of the second day of the hearing, but while that was entirely appropriate, it does not erase the effect of his behaviour the day before. Bearing the forgoing in mind, when there is a conflict in the evidence over whether Mr. Matthews assaulted Ms.

Johnston, or exactly how, or was aggressive and unreasonable with her, I am inclined to prefer her evidence over his, bearing in mind that Mr. Matthews may well lack self-awareness such that he is from time to time oblivious to the extent of his behaviours. That lack, coupled with an apparent tendency to self-justification and a “victim” mentality, might suggest that some of his less credible evidence was not necessarily untruthful notwithstanding it being significantly inaccurate. But that lack of insight is of some consequence in determining the best interests of these children. [ 21 ] At times, Mr.

Matthews was simply evasive and argumentative. It is difficult to accept his evidence that he was unaware of the term in a June 2 nd , 2023 Consent Interim Order requiring him (and Ms. Johnston) to “complete a 3 month Hair Follicle Drug test as soon as possible.” Ms. Johnston did; by the September 28 th hearing date, Mr. Matthews had not. That Order had 4 paragraphs, and the first one referenced the drug test bluntly and clearly. I am not prepared to accept that his then counsel did not discuss it with him before it was granted (by consent), nor fail to remind him or inquire about it.

It was not particularly helpful for him to then profess a willingness at the time of the hearing to go immediately and complete the test, or to testify that he had tried to do so several weeks previously and been told his hair was too short (but would coincidentally be long enough, apparently, immediately after the hearing). This, and other aspects of his testimony and general behaviour in the courtroom as outlined above, make it abundantly clear why Ms.

Johnston harbours such serious doubts over whether he is from time to time sober, mostly sober, or not sober at all. [ 22 ] Some discussion was had during the course of testimony, mostly with Mr. Matthews, over the meaning of “sober” or “sobriety.” I can accept that these terms are used in various ways, and sometimes mean a complete cessation of use of all mind-altering substances, sometimes reference alcohol in particular, and sometimes reference a cessation of use only of one’s drug of choice. I have far more confidence in Ms.

Johnston’s expressions of the extent and nature of her sobriety (she acknowledged using cannabis for anxiety

and sleep) than I do in Mr. Matthews’ representations on the same topic. In addition to the forgoing comments respecting credibility generally, I note that he grudgingly agreed (or perhaps almost agreed) that his occasional use of alcohol is rather dangerous, given his testimony that it has in the past led him to again use other drugs that have caused him significant difficulties. I am suspicious also that his professed knowledge of information that Ms.

Johnston is “partying” and using drugs, and associating with people who are a negative influence in that respect, is not based on solid information, and is presented in an attempt to discredit her and draw attention from his own behaviour. [ 23 ] At times, Mr. Matthews was simply stubborn and dismissive of other viewpoints or approaches. For example, he was opposed to the use of a co-parenting app and felt email would suffice.

While that stance is certainly not unusual, most parents readily concede that there might well be some value to using a dedicated app that has certain functions of considerable value to parents, such as calendar/schedule integration. And usually, the resistance is expressed as due to financial constraints, and there is no suggestion that is the case here.

And curiously in this context, a Consent Mutual No Contact Order issued by Justice Belzil May 24 th , 2023 contains this provision: The Parties shall only communicate through Talking Parents, Coparenter App or equivalent Parenting App, but only in relation to the Children or access to the Children.” Again, I find it hard to believe his then counsel did not discuss the terms of that Consent Order with him at any time. [ 24 ] The accumulated concerns regarding Mr.

Matthews’ approaches to conflict and conflict resolution lead to a decided concern over the viability of any significant level of coparenting or cooperative parental decision-making. Seen from the outside, there appears to be a very significant likelihood that coparenting here will devolve into constant conflict as Mr. Matthews struggles to ensure that he is in control and that everything plays out as he finds appropriate. Given the apparent limits of his self-awareness, he may well be more or less unaware that this is occurring. But it is a significant factor in assessing the best interests of these children.

I have no doubt that Ms. Johnston can from time to time be difficult and unreasonable in her own right, but I have substantially more confidence in her ability and willingness to consider other viewpoints, to compromise as appropriate, and to make concessions in order to further the girls’ best interests. [ 25 ] Ms. Johnston’s request for primary residence, and for the authority to make all parenting decisions, with specified parenting times for Mr. Matthews, seems at first blush to be over-reaching in light of her earlier agreement to shared parenting and a rotating residential schedule.

But when considered in light of all of the foregoing, it is understandable: she has evidently come to the conclusion that at least for the time being, the only hope for the stability of the parenting relationship, and the best interests of the children, hinges on her ability to be in control, and her obligation to be reasonable, to cooperate, and to make concessions appropriately (these being things that she has come to realize she cannot consistently expect from Mr. Matthews).

I note that that she has expressed a hope and an anticipation that the parties might well move into a coparenting relationship in the future, and that attitude is to her credit. [ 26 ] Drug testing has become a flashpoint for conflict between the parties over the past months, to the point where it might be considered to have become weaponized. On several occasions, the parties required one another to take urine sample drug tests at the site of the exchange of the children, and then argued over the results, with unfortunate consequences on both occasions. At one point, Ms.

Johnston was not enthused with the notion of Mr. Matthews’ then girlfriend, Ms. Cook, administering/interpreting his drug tests (she is apparently qualified for this); following his breakup with Ms. Cook, Mr. Matthews was not enthused with Ms. Johnston using Ms. Cook as a resource for drug test

interpretation (interestingly, he alleged that he was aware of instances in which she had falsified results). I am not convinced that ongoing drug testing is appropriate here, given the controversy that has been associated with it. I expect the parents not to be intoxicated while the children are in their care.

What they do when the children are not in their care I leave to them, bearing in mind that they are both well aware of the particular risks to them of substance use, and the potential for it to become an impediment to their ability to care for their children if that use, or its after-effects, spills over in any way into their care-giving time. [ 27 ] Ms. Johnston’s counsel argues that the parties should see to it that Ms. Sabados continues to see the children and provide guidance as to their wishes and best interests, and that would seem perfectly appropriate, particularly in relation to Serenity.

Of course, that assumes that Ms. Sabados is prepared to continue providing services. Similarly, Ms. Johnston’s counsel’s suggestion that the parties use a coparenting app to communicate and organize themselves is appropriate, the more so given that very requirement in Justice Belzil’s order (by consent). Serenity has a phone. I am not convinced that Tianna, at 5, soon to be 6, can appropriately have a phone of her own, but I will leave that issue for her mother to consider at this stage.

The day will surely come when she has a phone of her own, and I concede that the timing of phone possession by children is a difficult decision for parents these days; Mr. Matthews’ suggestion of a “traditional” phone, not internet-capable, with Tianna’s family members on speed-dial, is not without merit, but caution must be exercised even for that. Result [ 28 ] A consideration of all of the above leads inexorably to my finding that the following is in the best interests of these children at this time: (

a) Ms. Johnston shall have primary care of Serenity and Tianna, and sole decision-making with respect to them, other than as set out below; (

b) During Mr. Matthews’ parenting time, he will determine their day to day activities; (

c) The residence of the children shall not be changed from Whitecourt without an Order of the Court or the written consent of the parties; (

d) If either parent intends to travel with the children where an overnight away is anticipated, they will provide 20 days notice to the other party for travel within the province, and 30 days notice for travel outside the province but within Canada, including a general itinerary and appropriate contact information; the children will not be removed from Canada without an Order of the Court or written agreement;

(

e) The parties shall not be intoxicated in the presence of the children at any time, nor permit intoxicated persons to be in the presence of the children; (

f) Exchanges moving the children from Ms. Johnston to Mr. Matthews will take place at the Valleyview RCMP detachment, while exchanges moving the children from Mr. Matthews to Ms. Johnston will take place at the Fox Creek RCMP detachment; (

g) All exchanges will occur at 5:00 pm unless otherwise agreed in writing; (

h) Communication between the parties at exchanges will be limited to what is strictly necessary to move the children from one party to the other; (

i) The parties shall communicate through Talking Parents, Coparenter App or equivalent parenting app; the parties may communicate by email until they agree upon an app; in default of such agreement within 30 days of this Order, they shall each use the Coparenter App; (

j) The parties may vary the parenting

schedule set out in this Order only by written agreement; (

k) Each party is entitled to request and receive from third parties, without the consent of the other, information relating to the health, education, and well-being of the children; (

l) Each party shall promptly make the other aware of any contact by either child with a health care provider, including the reason for the contact and that health care provider’s contact information; (

m) The children shall have reasonable telephone/video access to the parent who is not caring for them at any given time, at the discretion (exercised reasonably) of the parent who is then caring for them; (

n) The parties will not speak negatively about one another in the presence of the children, or discuss family litigation matters in their presence, nor allow the children access to litigation materials such as orders or affidavits; neither party shall make negative comments about the other on social media; (

o) Mr. Matthews’ parenting time will be as set out in the interim Order issued October 3 rd until the Order reflecting the terms of this Judgment has been prepared, signed, and distributed to the parties; counsel for Ms. Johnston will prepare the form of Order in accordance with this judgment, making stylistic changes as desired; there shall be a dispensation with the requirement for Mr. Matthews to approve the form of Order, but it must be reviewed and signed by me; (

p) Mr. Matthew’s parenting time as set out in the Order to be prepared by Ms. Johnston’s counsel will be unsupervised, but otherwise as set out in paragraph 37 of Ms. Johnston’s affidavit filed May 12 th , 2023, except that Mr. Matthews is to have the first half of the Christmas school break in 2023, and times and dates for exchanges are to be specified; (

q) The Order shall also include a “police enforcement” clause in the standard form; (

r) Provided that Ms. Sabados is prepared to continue to provide her services, the parties will jointly retain her for further sessions with the children and the preparation of an update report in May or June of 2024; (

s) The Order will be reviewable only on one or the other of the parties demonstrating that a change in the needs or circumstances of the child has occurred since the Order; a recommendation by Ms. Sabados may constitute such a change in circumstances; (

t) The parties may speak to costs by way of written submissions of a maximum of 1 page, within 14 days of the issuance of these reasons, copying each other with those submissions. [ 29 ] On the date of this decision being formally signed, Mr. Matthews submitted to the clerks’ email address a document purporting to be the results of a drug test conducted on September 29 th , 2023. As it was not tendered during the trial, it is not evidence. For the purposes of these reasons, I ignore it. Heard on the 28 th day of September, 2023 and the 29 th day of September, 2023. Dated at the City of Grande Prairie, Alberta this 20 th day of October, 2023

D.R. Shynkar A Justice of the Alberta Court of Justice Appearances: P. Wilson for the Applicant C. Matthews Self-represented