SL v CL, 2023 ABCJ 237

In the Alberta Court of Justice Citation: SL v CL, 2023 ABCJ 237 Date: 20231109 Docket: FF901069196 Registry: Calgary Between: SL Applicant - and - CL and BF Respondents 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. Decision of the Honourable Justice D. Mah [ 1 ] In order to protect the identity of the children at the heart of this matter and for ease of reference, the Court shall use pseudonyms in identifying the parties involved.

Introduction [ 2 ] There are two children who are at the centre of the current applications before the Court. Traci – who is 6 years old and her brother, Elliot, who is 3 years old. The children each have 3 Guardians, their

Mother: Ms Becki Fontaine; Father: Mr Simon Letourneau; and Paternal Grandmother: Mrs Catherine Letourneau (the “Grandmother”). [ 3 ] The current Final Parenting and Guardianship Orders give primary care of the children to their Grandmother. In late February, 2022, the Father, Mr Letourneau, sought a variation to the Parenting Orders. He wanted to assume care of his 2 children and cited his then-three month old sobriety as the basis for his application. In addition, Mr Letourneau asked for sole decision-making authority over the children.

He indicated that the Grandmother could have parenting time “as mutually agreed”. [ 4 ] The Mother, Ms Fontaine, agreed that the Final Parenting Orders should be changed. However, she took the position that the children should reside with her as opposed to the Father or the Grandmother. Ms Fontaine suggested that the Grandmother supervise the Father’s parenting time, but did not propose any parenting time for Mrs Letourneau, herself.

In addition, the Mother was seeking child support payments from the children’s Father as well as the Grandmother. [ 5 ] Mrs Letourneau posited that there has been no change in the needs and circumstances of the children and therefore, she should retain primary care of both children. She also sought child support from both Parents. [ 6 ] The Court directed that the Hearing address the parties’ respective parenting time as well as Mrs Letourneau’s child support application, but not the Mother’s.

The Grandmother has had care of the children for a number of years and as Mrs Letourneau is seeking retroactive child support, her child support application is deemed timely and appropriate. On the other hand, Ms Fontaine’s child support application is hypothetical in nature as it hinges upon a change in the day-to-day care of the children.

As such, Mrs Letourneau’s child support application was directed to proceed whereas Ms Fontaine’s should be adjourned pending the outcome of the parenting trial. [ 7 ] Halfway through the Father’s case, Mr Letourneau had a change of heart and asked for his application to be withdrawn. He said that, in retrospect, he realized it would be detrimental to the children for their custodial arrangement to be changed and he now believed the children should remain in the Grandmother’s care. The Father did not feel that he nor the Mother were in a position to assume primary parenting of Traci and Elliot.

Mr Letourneau opined that both he and Ms Fontaine were still too fresh in their sobriety to assume a day-to-day parenting role and strongly urged the Court to maintain the status quo. He further indicated that the relationship shared by the two Parents was far too acrimonious to allow for any type of co-parenting or cooperation whereas he felt that the Grandmother was fair in dealing with both himself and Ms Fontaine. Parenting THE FATHER’S CASE Simon Letourneau [ 8 ] Mr Letourneau is currently 35 years old and is employed as a HVAC Technician. He is married to a woman named Cassie Wengate.

The couple share a 21-month-old son and also parent Ms Wengate’s 8-year-old daughter from a previous relationship. [ 9 ] The Father testified about his initial experimentation with drugs when he was 17 years old. When he was younger, he smoked marijuana and “tried” cocaine, but by 2014, Mr Letourneau was using fentanyl, fake oxycontin and / or cocaine on a daily basis. He admitted overdosing a number of times in his life and having Narcan administered to him “more than a few times”. [ 10 ] Mr Letourneau said that he first dated the Mother in 2011.

They resumed their relationship in 2016 when she contacted him after the local newspaper published an

article about the Father’s then-criminal charges. Later on in his testimony, he seemed to suggest that they were living together in the Grandmother’s basement as early as 2015. The Father also spoke about Ms Fontaine dating another individual around this time period which made it difficult for the Court to ascertain the timing of certain events. Nevertheless, Mr Letourneau was adamant that the couple often consumed cocaine, fentanyl and marijuana during their time together.

In addition, Ms Fontaine used alcohol to excess, although Mr Letourneau claimed that he abstained from the same. [ 11 ] The Father referenced an occurrence wherein the Mother had told him that she had been charged with “an armed robbery” at a Shoppers Drug Mart. He said that he helped secure a lawyer for Ms Fontaine and “after that, everything was good” which the Court took to mean that the Mother had ceased using drugs. It is not clear when Ms Fontaine became sober, but the Father did say that they stopped their usage of drugs in March 2016 as Mr Letourneau was being sentenced.

The Father then spoke about the couple’s abuse of substances during Ms Fontaine’s pregnancy with Traci and said, “We relapsed a lot”. [ 12 ] The couple’s eldest child, Traci, was born in August 2017 with the Mother testing positive for fentanyl immediately after the birth. Not surprisingly, the baby also had fentanyl in her system and had to be administered morphine. She was born premature and stayed in the hospital’s NICU for over a month after her birth.

The Director became involved with the family and eventually, a Safety Plan was implemented wherein the Parents had to reside in the Grandmother’s home and leave the premises without their children if they felt the urge to use drugs. The Father said that he and Ms Fontaine relapsed “all the time”. [ 13 ] Traci was approximately 1 year old when Ms Fontaine discovered that she was pregnant with Elliott. Once again, Children’s Services (“CS”) became involved with the family after the Mother’s Medical Clinic contacted the Director to report fentanyl in the Mother’s urine.

The Father admitted that both he and Ms Fontaine were using fentanyl during this time period and said the Mother was also consuming cocaine. Mr Letourneau agreed that he and the Mother were “so messed up on drugs” that neither could look after their children.

[ 14 ] In 2019, Elliot was born. The Parents were told by the Director that CS would apprehend the children unless the Grandmother obtained Guardianship of them both. Notably, Court records show that the Grandmother had already obtained Guardianship and day-to- day care of Traci in August 2018 (five years ago). The said Guardianship Order specifically noted that Mrs Letourneau has had care of Traci since September 2017 – a mere month after the child’s birth. In July 2021, the Grandmother obtained Interim Guardianship of the youngest child.

One month later, Mrs Letourneau finalized her Guardianship of Elliot as well as securing his day-to-day care. In addition, the Grandmother also obtained a Final Parenting Order which said that Traci was to reside with her. Arguably, this latter Order was redundant in nature as Mrs Letourneau’s Guardianship Order with respect to Traci already indicated that she was to have day-to-day care of the child. Mr Letourneau conceded that he and Ms Fontaine were incapable of caring for their children. [ 15 ] The Father eventually moved out of his mother’s home, but gave varying dates of when he did so.

He was consistent in saying that the children and their Mother continued to live in Mrs Letourneau’s basement after he left. Mr Letourneau thought Ms Fontaine was “clean”, but subsequently found out that Mrs. Letourneau was finding tequila bottles throughout her house as well as burnt tinfoil in the garbage, the latter of which is the end result of smoking fentanyl. As a result of these discoveries, CS stated that neither of the Parents could stay in the Grandmother’s home or be around the children. Mr Letourneau admitted that both he and the Mother were continually using drugs during this time period.

On one occasion, they showed up at the Grandmother’s house demanding their children’s return which resulted in the Grandmother contacting the police. [ 16 ] The Father said that there were at least five occasions where Ms Fontaine overdosed and required the use of Narcan. In 2016, while the Father was imprisoned, the Mother overdosed at a friend’s house. The friend alerted Mr Letourneau by phoning him in jail. In November 2020, the Father witnessed the Mother overdosing in the basement while the children were sleeping nearby. He gave her two doses of Narcan to revive her.

In 2021, Mr Letourneau referenced two occasions – the first when he used three syringes on the Mother and another when four bottles of Narcan were needed to wake her up. The latter occasion occurred at the Grandmother’s home while the children were upstairs napping. On another occasion, Ms Fontaine had contacted the Father and threatened to kill herself because the Father had begun a relationship with someone else. He found her unconscious and lying in her own waste. The Father administered three vials of Narcan and performed cardiopulmonary resuscitation on Ms Fontaine.

The Mother finally regained consciousness at the same time the ambulance arrived. As a result of this latter incident, the Father made a decision to go and detoxify himself. He realized that his life was “going downhill” and that the Mother's addictions were having a deleterious effect on his own recovery. [ 17 ] The Father asserted that he no longer suffers from active substance abuse issues. In January 2022, the Father began a physician-supervised drug program involving the use of Sublocade. Sublocade helps prevent withdrawal symptoms from opioid use at the same time it curbs the body’s cravings for opioids.

The Father referenced an opioid dependency panel from May 2022 which corroborated his sobriety. He also proudly indicated that his Mother administered a drug and alcohol test approximately one week prior to trial which test illustrated the presence of Sublocade in his system. He felt that its presence bolstered his claims of sobriety. With the exception of marijuana products, the Father said that he has not used any drugs since December 2021. Mr Letourneau claimed that his use of marijuana is due to a severe back injury that he sustained from a car accident in October 2021.

The Father purchases his marijuana from a licensed vendor, does not smoke the substance indoors or around the children, and keeps it stored in cupboards out of the children’s reach. He believes that the type of marijuana he uses does not contain any tetrahydrocannabinol (“THC”) - a hallucinogenic chemical contained in most strains of marijuana. Mr Letourneau stated that his Mother continues to administer random drug tests to him with the understanding that if the tests show positive results for anything other than marijuana, he would not be able to see Traci and Elliot.

On cross examination, the Father was presented with a photo which depicted him in bed with a tray containing marijuana and a young child in close proximity. He explained that his normal morning routine involves preparing a marijuana joint to smoke outside until he feels his back loosen up. His stepdaughter took the picture after she and his youngest son wandered into the room. Mr Letourneau was preparing his marijuana at the time. The Father purposely tucked his son’s arm under his own in order to prevent the child from accessing the marijuana.

Soon thereafter, he moved the tray out of reach of the child. [ 18 ] The Father spoke of various concerns with respect to the history of care provided to the children by their Mother. • When Elliot was only 2 years old, he was in so much dental pain that the little boy refused to eat. The Father was subsequently advised that Elliot needed oral surgery due to the tooth decay he was experiencing. A letter from the child’s dentist confirmed that extensive treatment was required and that the same was completed under general anesthesia.

Notwithstanding Mr Letourneau’s acknowledgement that all of the boy’s Guardians were responsible for Elliott’s care, he primarily blamed Ms Fontaine for the child’s dental predicament. Ms Fontaine had “quirky” ideas about mother-child bonding and would not allow anyone to bathe the child or brush their teeth if she was available to do so. Upon further examination, the Father conceded that he shared some of the blame for Elliot’s dental problems as Mr Letourneau was using drugs; often worked late hours and eventually left his Mother’s home.

The Father said that he spoke to the Mother about the child’s extensive tooth decay problems and suggested that she assist him with the notable dental expenses. The Mother stated that, “children don’t need dental care” and then asked if the surgery could be delayed until such time as she could afford it. The Father ended up paying for the entirety of Elliot’s dental treatment. • The Father accused the Mother of permitting the children to play amongst marijuana plants. Apparently, the Paternal Grandfather had obtained a license to grow such plants for medicinal purposes.

The operation was situated in the paternal grandparents’ garage which was locked up and off-limits to the children. Mr Letourneau indicated that he never permitted the children to enter the garage, but accused the Mother of not only allowing them into the garage, but letting them play in there as well. He produced pictures of the Mother, Traci and Elliot amongst all of the plants and claimed that the Mother has posted pictures of her dancing with the children in the grow operation.

The Maternal Grandmother never approved of the plants and eventually destroyed all of them. • Mr Letourneau stated that the Mother has mental health problems which compromises her ability to assume primary parenting of the children. In the past, Ms Fontaine has cut herself multiple times when the Father was at work. The cutting purportedly occurred even when the children were nearby.

He said that the Mother has threatened to kill herself in front of the children – at one point, asking him to tell the children that she was sick, but she loved them. [ 19 ] The Father reiterated instances of concern such as when he went to retrieve the children from the Mother for his own parenting time and found them dressed in t-shirts despite it being wintertime. He said the children expressed how cold they were. Mr Letourneau also spoke of his observations that the children always seem to be ill after spending time with their Mother. He specifically

talked about the rashes which Elliot has on his legs when he returns from Ms. Fontaine’s care. The Father further noted a severe allergic reaction experienced by Traci when she was in British Columbia with the maternal side of the family. He claimed that both Ms Fontaine and the Maternal Grandmother resisted taking the child for medical treatment. [ 20 ] Mr Letourneau said that he has attempted to express his concerns to the Mother numerous times to no avail.

He also spoke of the difficulties he has getting along with Ms Fontaine. [ 21 ] He said that the Mother has attempted to break up Mr Letourneau’s relationship with his current wife by threatening to tell Ms Wengate that the two were having an affair. On cross examination, he admitted that he retaliated by disclosing unsavoury aspects of the Mother’s life to her employer as well as to Ms Fontaine’s current boyfriend. [ 22 ] The Father also accused the Mother of interfering with his parenting time despite a Court Order specifically prohibiting the same.

Mr Letourneau claimed that Ms Fontaine kept showing up when he was scheduled to be with the children. He provided a photograph of the Mother kneeling next to Elliot during the child’s swim lessons which were scheduled during the Father’s parenting time. On another occasion, the Mother contacted the Father at 10:30 pm in order to speak to the children. He had to explain to her that their bedtime was two hours earlier and thus, neither child was available. [ 23 ] Mr Letourneau vehemently disagreed with Ms Fontaine’s hopes to enroll the children at the childcare and preschool facility where she is employed.

Mr Letourneau does not believe the owner of the facility should be entrusted with the care of his children. He said that the Mother, herself, used to attend the same daycare / school when she was a child. He understood that her own parents were often under the influence of alcohol when they came to pick up Ms Fontaine. The said owner permitted them to do so notwithstanding their intoxicated state. [ 24 ] The Father described his two eldest children to the Court. Traci is very shy and sometimes has difficulties socializing with others as well as regulating her emotions.

He believes that Traci may have cognitive disabilities. The child’s teachers have noted some of the child’s struggles and recommended that she see a pediatrician. When the Father first advised the Mother of the teacher’s sentiments, the Mother denied the child had any issues; accused the Father of being “crazy”; and called him a pejorative name. In addition, Mr Letourneau has noticed that Elliot has some problematic behaviours as he is “hyper” and has difficulty focussing at times. [ 25 ] The Father described some of the activities which he enjoys sharing with his children.

They spend a great deal of time outdoors where the children ride horses, and sometimes accompany their Father when he goes hunting. Mr Letourneau indicated that he takes time off work on the weekends when he is scheduled to be with Traci and Elliot.

In the past, he would occasionally respond to work calls during his parenting time, but the Grandmother said that if he prioritized his employment over his children, she would curtail his weekend parenting time accordingly. [ 26 ] Mr Letourneau was very complimentary with respect to his mother and said that she looked after the children better than he or Ms Fontaine ever could. He said that Mrs Letourneau encourages his relationship with the children and that he is not denied parenting time as long as such parenting time is “within reason”.

The Father has heard accusations put forth by Ms Fontaine that the Grandmother favours him by giving him more time with the children than what the Mother receives. He dismissed Ms Fontaine’s complaint and indicated that the Grandmother has attempted to accommodate the Mother by giving her “extra” time, however Ms Fontaine rarely exercised the same. He suggested that any difficulties experienced by the Mother were her own fault.

The Father produced a text message from last year wherein the Mother said that the Grandmother had a sinister motive against the Parents and should “get her own life”. [ 27 ] Mr Letourneau admitted that the relationship he has with Ms Fontaine is “toxic” and further admitted that given the said toxicity, it may be in the children’s best interests to simply remain in the care of their Grandmother. Cassie Wengate [ 28 ] Ms Wengate is the wife of Mr Letourneau. She met the Mother, Ms Fontaine, in 2021 after she became acquainted with her now-husband.

Shortly thereafter, Ms Wengate took active steps to encourage Ms Fontaine’s sobriety and to assist her in registering at a residential rehab facility. Ms Wengate does not believe that the Mother ever attended any such facility. She relayed a text message sent to her by Ms Fontaine in which the Mother referenced self harm. Ms Fontaine said that she was “done” and was “giving up”. The Mother asked Ms Wengate to relay to the children that she loved them and to ensure that they knew who she was. [ 29 ] Ms Wengate then began to discuss how important structure and routine were for Traci and Elliot.

She opined that it was in their best interests to remain in the primary care of their Grandmother. At that point, the Court felt it was appropriate to adjourn over the lunch hour as it was quite apparent that Mr Letourneau and Ms Wengate had two differing viewpoints as to where the children should reside. [ 30 ] Upon returning in the afternoon, Mr Letourneau addressed the Court and said that he was abandoning his original application. In retrospect, he felt that neither he nor Ms Fontaine were in a position to have the children in their care.

He believed that due to the numerous relapses which he and the Mother have both experienced through the years, the children should not only remain with their Grandmother, but that Mrs Letourneau should have final say on all decision making. THE MOTHER’S CASE Becki Fontaine [ 31 ] Becki Fontaine is the 32-year-old Mother of Traci and Elliot. She is employed as a childcare provider at a preschool. Ms Fontaine currently resides with her boyfriend, Bruce Donald.

[ 32 ] Ms Fontaine moved in with the Father during the Christmas season of 2015. The two resided together in the Grandmother’s home and frequently engaged in drug use. Ms Fontaine said that she has been in a “battle with drugs” since she was 18 years old. The Mother admitted that she and the Father used illicit substances at the time she became pregnant with their first child. Presumably as a result of her pregnancy, Ms Fontaine sought assistance from the Opioid Dependency Program and was placed on Suboxone - a medication that helps people with opioid withdrawal symptoms.

Unfortunately, the Mother relapsed within a week and began to use drugs again with a strong preference for fentanyl. Ms Fontaine returned to the medical clinic for more help and along with the Father was placed on methadone, another medication meant to help treat opioid addiction. Notwithstanding the same, she said the hospital found cocaine in the Mother’s urine when Traci was born. The Mother advised the social worker at the hospital that she did not “touch” cocaine but admitted engaging in marijuana use.

Ms Fontaine did not say whether or not she lied to the social worker nor did she explain how cocaine could have found its way into her system if she was not using it. Traci was born prematurely in August 2017 at 33-1/2 weeks. The baby spent a month in the NICU unit. [ 33 ] CS became involved within 24 hours of Traci’s birth. Ms Fontaine said that the Director was happy that the Grandmother was assisting the Parents, but expected the Parents to come up with a Safety Plan and to enroll in anti-drug courses.

A key part of the Safety Plan involved Mrs Letourneau being made a Guardian of Traci. [ 34 ] Six months after Traci’s birth, the Mother experienced health problems with her heart and was hospitalized. As a result, the methadone with which she was being treated was replaced by a slow-release morphine. [ 35 ] In November 2019, Elliot was born. Confusingly, Ms Fontaine said she was on methadone until such time as the birth, but later on, indicated that she was on morphine. After Elliot’s arrival, Ms Fontaine returned to the Grandmother’s home along with the Father.

She said that Mrs Letourneau occasionally helped with the children but characterized herself as the main caregiver due to the Grandmother’s trips to Edmonton and the Father’s employment. She claimed that she was “clean” and did “really well”. Ms Fontaine said she maintained her sobriety in 2020, but that the Father continued to struggle. By December 2020, Mr Letourneau decided to move out of the house. The Mother said that he never told her he was breaking up with her – just that he had to work. For the next seven months, the Father came back to the home sporadically.

Finally on Mother’s Day of 2021, the Grandmother advised Ms Fontaine that the Father was expecting a child with someone else. The Mother felt as though her whole life “was turning upside down” and began to drink. Ms Fontaine admitted that she had fully relapsed by the end of June 2021 and that her drug use often occurred in the Grandmother’s home. Specifically, she admitted to the use of marijuana and fentanyl – despite the children being present in the house. Because the Grandmother often administered random drug tests, Ms Fontaine took steps to hide samples of uncontaminated urine.

The Grandmother discovered the same and eventually asked the Mother to leave. The children remained with Mrs Letourneau. [ 36 ] After vacating the Grandmother’s home, the Mother lived in a hotel for several months. During her intermittent periods of sobriety, Mrs Letourneau brought the children to the hotel for visits. The Father also frequented the hotel during which time the Parents used drugs together. On one occasion, theywent to the Grandmother’s home after taking drugs. Ms Fontaine claimed that she stayed in the vehicle, but Mr Letourneau went to the door yelling at his mother for kidnapping the children.

The Grandmother refused to allow him in the home. The two Parents then went to a police station, presumably to complain about Mrs Letourneau. While there, the Parents disclosed that they had relapsed. The police took no action with respect to any of the parties, but CS again became involved with the family in July 2021. When Ms Fontaine told the worker that she wanted her family back, the worker bluntly replied that this would not happen because of the Mother’s drug usage.

The worker said that there would be forthcoming Court applications due to the Parents’ lifestyle choices. [ 37 ] Ms Fontaine was present when the Grandmother applied for Guardianship of each of the two children. She consented on both occasions. The Mother agreed that it is important for the children to have consistency in their lives and that the children have remained in the Grandmother’s home since their birth. On cross examination, the Mother admitted that the Director closed its file due to the Grandmother’s status as the children’s Guardian and primary caregiver.

The Mother acknowledged that the Director’s involvement was due to her drug use which occurred from the time she became pregnant with Traci until after Elliot’s birth. She disclosed that her drugs of choice were fentanyl and marijuana. [ 38 ] Ms Fontaine secured her own apartment towards the end of July 2021, but continued to use drugs. The Grandmother drove the children to see their Mother and also stayed to supervise. During this time period, the Mother was constantly fighting with Mr Letourneau as he was vacillating back and forth between her and Ms Wengate.

Ms Fontaine cut herself on a number of occasions, however characterized her wounds as “not that deep”. She claimed that she did so in order to gain attention and in the hopes of reuniting with Mr Letourneau. During this time, Ms Fontaine’s drug use resulted in an incident where she needed to be “narcaned” and ended up in the hospital. [ 39 ] The Grandmother contacted Ms Fontaine’s parents about their child’s difficulties. The Maternal Grandparents came to their daughter’s apartment and moved her into their own home. Ms Fontaine was there for three to four days before she relapsed again.

During the four to five months that the Mother estimated she spent at her own Parents’ home, Mrs Letourneau continued to facilitate Ms Fontaine’s visits with the children. Sometimes, the Grandmother would remain for the entirety of the visit in order to supervise and sometimes, she would entrust the Maternal Grandparents to monitor the situation. Ms Fontaine conceded that Mrs Letourneau would accommodate her requests for parenting time unless the children had prior commitments. [ 40 ] Eventually, a friend of Ms Fontaine’s mother helped Ms Fontaine to realize that she needed to get better.

The Mother said she sought counselling and has not used any street drugs or marijuana since August 2021. Ms Fontaine addressed an incident where she went to a laboratory for drug testing at the Grandmother’s insistence. She indicated that she never received the results and therefore, could not provide the same to Mrs. Letourneau. However, in support of her assertions, the Mother produced two drug tests showing negative results across 14 panels. Both exams involved hair follicle analysis and were administered August 29, 2022, and June 14, 2023, respectively.

Later on in her testimony, she contradicted herself when she said that she used marijuana with the Father in early 2022. Ms. Fontaine admitted her current use of alcohol, but only when the children are not with her and only to the point where she gets a “buzz” as opposed to being “falling over drunk”. [ 41 ] By December 2021, the Mother had found employment and was able to, once again, secure her own place in January 2022.

The Mother referenced her current romantic relationship with her boyfriend: Bruce Donald, but it is unclear when they began seeing one another. By July 2022, however, the Mother had moved into Mr Donald’s home. [ 42 ] The Mother addressed some of the Father’s concerns about her parenting. [ 43 ] With respect to Elliot’s dental situation, Ms Fontaine claimed that his teeth were “not bad” when she moved out of the Grandmother’s home. She did, however, notice that he had grey spots which the Mother believed were caused by a lack of fluoride.

She said that Traci had a similar diagnosis when the eldest child was a year old. In the latter instance, Ms Fontaine was given fluoride by the child’s dentist to administer to the child at home. The Mother said that she was not informed about Elliot’s dental situation until January 2022 when she was told that she owed money for the medical bill. She has since purchased toothbrushes for the children and inspects their teeth after each brushing.

On cross examination, the Mother admitted that she had received “pages and pages” of texts from Mr Letourneau about Elliot’s dental situation but did not bother to read them. Ms Fontaine first claimed that she does not read the Father’s messages if they are not about the children – although one queries how she would become aware of the subject matter until such time as she read the texts. The Mother then said that she does not read Mr Letourneau’s texts because he screams at her.

It was pointed out that it is impossible to actually scream in a written text at which point, Ms Fontaine clarified that she had just become accustomed to being yelled at by Mr Letourneau. [ 44 ] In commenting about the photos taken of the children playing amongst marijuana plants, the Mother admitted that she made a horrible choice. She denied posting of the photos on any social media and was unsure as to when the pictures were actually taken. She said that she would not make the same decision today.

Later on in her testimony, she tried to suggest that it was actually the Father who encouraged her to take the pictures – an accusation which was never put to the Father. [ 45 ] Ms Fontaine conceded that she has struggled with her mental health during the entire course of her lifetime. She implied that if she had a better relationship with her own mother, she may have received some needed treatment. When presented with a Pre- Sentencing Report which had been written about her, Ms Fontaine acknowledged telling the author of the Report that she tried to end her own life when she was 20 years old.

Similarly, the Mother admitted that she had told Ms Wengate of an intention to commit suicide. In both instances, the Mother dismissed her utterances as an attempt to garner attention for herself. The Mother did not provide any evidence as to what services, if any, she has obtained to deal with her mental health issues. [ 46 ] Ms Fontaine did not comment on the Father’s allegations that she did not properly dress the children for the weather; how they often became unwell after spending time with her; nor what steps she took when the children suffered from rashes or allergic reactions.

In speaking of Traci’s purported struggles as outlined by the Father in his testimony, Ms Fontaine opined that her daughter is too young for any type of full diagnosis. She expressed the view that Traci simply needed to be with her Mother “in a really healthy warm home with a bunch of other children and enjoying a really scheduled routine with healthy eating habits”. [1] [ 47 ] In mentioning her relationship with the Father and the Grandmother, Ms Fontaine acknowledged the importance of the role both had played in her children’s lives.

The Mother then went on to describe the relationship between the three of them as difficult. [ 48 ] Ms Fontaine admitted making derogatory comments about the Grandmother and the appropriateness of the Grandmother’s involvement with the family. Ms Fontaine conceded that she has used foul language to describe the Grandmother. The Mother spoke about parenting time arrangements made with the Grandmother and referenced a request she made for the current summer holidays. Ms Fontaine had suggested that the children be placed in her care every alternative weekend commencing on Friday until the following Tuesday.

The Father could pick up the children on Thursday and the Grandmother could have time “in between”. Ms Fontaine said that Mrs Letourneau refused her request as the Grandmother did not feel that it was in the best interests of the children to be in daycare during the Mother’s parenting time. The Mother had a different point of view and thought the children’s attendance at daycare would be a “good thing” as Traci and Elliot could then “see my world” and participate in the various activities offered by the preschool.

The Mother also wanted to exercise some of her parenting time at her family’s British Columbia cottage, but the Grandmother denied the request due to the latter’s concerns over the British Columbia wildfires, the resulting smoke and the possibility of excessive alcohol consumption by family members during the getaway.

Notwithstanding the Grandmother’s rejection of Ms Fontaine’s summer proposal, Mrs Letourneau did allow the Mother parenting time for a continuous period of 11 days in July 2023 in addition to alternating weekends. [ 49 ] The Mother did not offer any suggestions as to how she could improve the relationship between herself and Ms Letourneau, although she hoped that everyone could be open and honest. Ms Fontaine stated that there has been a loss of trust and expressed optimism that the same could be rebuilt.

Ironically, the Mother acknowledged that during a recent weekend in which she was exercising parenting time, she brought Traci to a new dentist. Ms Fontaine did not discuss the appt with anyone else as she purportedly wanted a second opinion. It was not clear whether there was a particular diagnosis with which the Mother disagreed or what the second opinion was meant to address. Instead, Ms Fontaine seemed to suggest that she consulted a new dentist because she had never allegedly been invited to any of Traci’s appointments with the child’s regular dentist.

The Mother also admitted that she unilaterally changed an appointment which the eldest child had with her doctor and did not notify the Grandmother. This resulted in Mrs Letourneau taking the child to the previously scheduled appt only to be told that it had now been scheduled for a different time. [ 50 ] Several times during the course of her testimony, Ms Fontaine described her relationship with Mr Letourneau as “toxic”. The Mother admitted that she has sent messages to the Father where she has used profanity.

One of these messages threatened to kill Mr Letourneau and then have another man “lay between me and Traci”. In addition, Ms Fontaine has texted Ms Wengate and told her that the Father cheated on his now wife with Ms Fontaine. She explained that the messages were sent because she was angry at the time. [ 51 ] Ms Fontaine is seeking primary care of the children and provided the Court with her proposed parenting plan (Exhibit 29). The said plan recommends parenting time for the Father on alternate weekends unless the Grandmother wants the said weekends. Deviations from the normal

schedule should occur during vacation times. Ms Fontaine suggested that vacation time could alternate between herself and the Father. When queried about the parenting time to be allotted to the Grandmother, the Mother said that Mrs Letourneau could see the children on Fridays after school and if the same were designated Professional Days (“PD”), the children could also possibly spend the preceding Thursday with their Grandmother. Ms Fontaine explained that she is seeking a gradual transition from the status quo, but provided no further detail as to what she envisioned in this regard.

[ 52 ] The Mother stated that once the children begin to reside with her, they could accompany her to work where Traci would attend school and Elliot go to the daycare. The Mother went into some detail about the childcare facility at which she works. She said that children learn to take instruction and described how the school’s “curriculum” identifies milestones for children. Upon school dismissal of the older child, the Mother proposed that Mrs Letourneau could pick up both Traci and Elliot.

As Ms Fontaine and the Father have difficulty with their communication, she felt that this proposal would assist in reducing the Parents’ confrontational behaviour with each another. The Mother produced a map which illustrated the distance between each Guardians’ respective home to the school and described the preschool as being centrally located notwithstanding that it was approximately 30 minutes away from all parties. [ 53 ] The Mother did not testify a great deal about her current living arrangement except to say that Mr Donald has his children every Wednesday to Sunday. Everyone appears to get along.

She specifically denied leaving Elliot behind with Mr Donald while she spent time with Traci – save for an occasion when Elliot wanted to play nerf guns while his sister went to a dentist appointment. [ 54 ] The Mother conceded that her past “looks horrible” but was hopeful that the progress and changes she has made were apparent to all. She claimed that she has put aside any differences she has against the two other Guardians and believes that she should have primary parenting. Despite her practice in the past, Ms Fontaine said that she no longer tells lies in order to gain sympathy.

The Mother repeated several times that she was happy with herself and that her children were her top priority. Bruce Donald [ 55 ] The Mother’s boyfriend testified that the two began dating approximately 20 months ago (in January 2022) and now live together. He has two children of his own who reside with him half of the time. Mr Donald described the relationship between himself, Traci and Elliot to be good and similarly, said that his own children got along with Ms Fontaine’s kids. He described the Mother’s relationship with all of the children as “fabulous” and stated that she is very engaged with them.

The couple live in a home which Mr Donald owns. He is, however, still married to someone else and has not yet filed for divorce. [ 56 ] Mr Donald seemed to have limited knowledge about Ms Fontaine’s past. While he was aware that she had substance abuse issues, he did not know that she used while pregnant nor what type of help she had received to overcome her addictions. He realized that Ms Fontaine had issues with the Paternal Grandmother, but could not comment any further.

He acknowledged past CS involvement with the family, but professed that he did not know the details nor why the Mother’s visits with her own children had to be supervised until recently. He was unaware of Ms Fontaine’s past threats to self-harm and has never witnessed her cutting. He did not feel that she had a problem with alcohol use. THE PATERNAL GRANDMOTHER’S CASE Catherine Letourneau [ 57 ] Catherine Letourneau is the Paternal Grandmother of both Traci and Elliot. Her husband, the Paternal Grandfather, often works out of town and appears to be away from the home for extended periods of time.

Mrs Letourneau testified that both children have lived with her in the same house since they were born. The children call her Nani and she has always been involved in their lives. [ 58 ] Mrs Letourneau did not disagree to any significant degree with the Parents’ testimony about their history. CS became involved in the family as soon as Traci was born, and a Family Enhancement Plan put in place. The Director’s Safety Assessment noted that both Parents had a lengthy history of fentanyl use.

The Grandmother obtained Guardianship of Tracy and while all three adults in the home played a role in looking after the baby, Mrs Letourneau was entrusted with supervision of the Parents’ parenting time. CS frequently came to the house in order to monitor the situation. The Parents were actively using drugs and frequently slept during the day. Neither Parent contributed financially to the household’s expenses save for the Father who paid for some of the food and diapers. It does not appear that things changed to any great extent after the arrival of Elliot – although the Grandmother retired from her employment.

Again, CS became involved and monitored the situation. Mrs Letourneau commented that the Mother drank on a daily basis. She noted that Ms Fontaine frequently slurred her words and stored tequila in the fridge. The state of the Parents’ living quarters was unkempt and unclean.

The Grandmother tried to remedy the situation, but eventually just took steps to ensure that the children’s rooms were in good condition. [ 59 ] In December 2020, the Father moved out of the home, leaving the Mother and the children behind. [ 60 ] In May 2021, while the Grandmother was visiting her other son in Edmonton, the Grandmother saw two women on her security cameras who had been welcomed by the Mother into Mrs Letourneau’s home. The Grandmother concluded from their appearances that the women, Ms Fontaine and the Father were all under the influence of drugs.

At this time, both children had been left in the care of their Mother. Mrs Letourneau was very concerned that Traci and Elliot would be exposed to the situation. The Grandmother wanted the women to leave. Later that evening, she discovered that the Mother had collapsed and been brought to a hospital. Initially, she had been told that Ms Fontaine lost consciousness due to a problem with her heart, but the Father subsequently admitted that Ms Fontaine had overdosed.

Mrs Letourneau rushed home the following day and discovered that her home had been “destroyed” in the course of a single day. [ 61 ] The events of the weekend verified the suspicions which the Grandmother had of Ms Fontaine’s substance abuse. Mrs Letourneau had noticed that the Mother was spending inordinate amounts of time in the downstairs bathroom. She knew that her son engaged in similar behaviour when he was using drugs. Mrs Letourneau also found tinfoil in the garbage – which is used to smoke fentanyl.

When confronted, Ms Fontaine denied that the tinfoil was hers and tried to blame the Father, who had not been in the house during the relevant time period. Ms Fontaine eventually admitted that she had smoked fentanyl while the children were with her. In June 2021, the Grandmother demanded that the Mother leave her home and drove her to a hotel.

[ 62 ] Mrs Letourneau contacted CS who came to inspect the basement where the Parents had previously presided. The caseworker advised that everything needed a deep clean due to the possible presence of fentanyl; neither Parent should be permitted back into the house and the Grandmother had to obtain Guardianship and primary care of the children. Should she fail to do so, both children would be apprehended by the Director.

Mrs Letourneau obtained the requisite Court Orders with the consent of both Parents and was advised that CS would close its file due to the Grandmother’s involvement with the children. [ 63 ] The Grandmother indicated that the children adjusted very well after the Mother’s move out of the former’s home and appeared quite happy. She believed that the Father had moved into the Mother’s hotel for a brief period of time.

The Grandmother brought the children to the Parents so they could spend time together and would stay to supervise their time. [ 64 ] Towards the end of July 2021, the Grandmother discovered that the Mother had suffered another overdose and was taken to the hospital. Upon Ms Fontaine’s discharge, she went to British Columbia for approximately two months during which time, her parenting time was very sporadic.

After her return, the Grandmother continued to arrange for the Mother’s parenting time and to ensure that all of the visits were supervised. [ 65 ] The Grandmother’s concerns about the Mother’s possible substance abuse arose again in May 2022. On one occasion, she noticed a strong smell of alcohol from Ms Fontaine. On another, she had asked the Mother to undertake a fingernail test for drug and alcohol abuse. Arrangements were made for the two parties to meet at the lab, but the Mother arrived two hours earlier without advising the Grandmother.

As a result, Mrs Letourneau was asked to pay the bill of $1,050 when she arrived. She subsequently discovered that the Mother had excluded her from receiving the test results. To this day, she has neither received the results nor been reimbursed by the Mother. After these two incidents, the Grandmother applied successfully for the mandatory supervision of the Mother’s parenting time, whereas it was discretionary before.

Mrs Letourneau said that the Mother did not have to pay for any costs associated with the supervision as the Grandmother provided all of the supervision and drove from one end of Calgary to the other to facilitate the Mother’s visits. [ 66 ] The Grandmother remains vigilant about the protection of her two grandchildren and preventing exposure to their Parents’ substance abuse. The Grandmother explained that notwithstanding her husband’s medical license to grow marijuana, she has never approved of the same.

What was supposed to be a modest operation consisting of a “couple of plants” turned into a huge grow operation when the Father offered to oversee the plants. The Grandmother was careful in preventing the children any access to the garage where the marijuana was grown. Once Mr Letourneau moved out of his Mother’s house, the Grandmother destroyed everything in the garage. Mrs Letourneau has now acquired testing kits which allow drug detection over 14 different panels and which curtail opportunities to cheat by monitoring the testee’s urine temperature.

While it is not clear whether she seeks drug tests from the Mother on a regular basis, she continues to administer drug tests to her own son and arrives unannounced during his parenting time in order to check the situation. [ 67 ] Mrs Letourneau has expressed several concerns about the potential of the children’s current living arrangements being altered. [ 68 ] She is worried that such a change will detrimentally affect the well being of both children. Both she and the Father have witnessed Traci’s social issues which have also been noted by the child’s teacher.

Traci does not associate with other children and suffers from extreme bashfulness. She appears to lag behind in motor skills as compared to her contemporaries. Neither child adjusts well to change. The Grandmother opined that neither would do well if they were taken away from the home environment in which they have been raised. [ 69 ] She does not believe that the Mother will cooperate with the children’s other Guardians. Mrs Letourneau cited examples of the Mother’s conduct which have led to her belief.

The Grandmother spoke of the Mother’s insistence in keeping all of the children’s legal documents including their birth certificates and Alberta Health Care cards. Ms Fontaine has told the Grandmother that the latter has no right to these documents and has refused to provide the same. Even after the Grandmother specifically indicated that she required the birth certificates in order to receive the Tax Credit for the children, the Mother refused. Mrs Letourneau accused the Mother of applying for the credit and forwarding only a portion thereof to the Grandmother.

Mrs Letourneau had to take several steps to unilaterally change the payment arrangements. [ 70 ] Mrs Letourneau also spoke of an instance several months ago when Traci was scheduled for an ultrasound and other testing. Because the Grandmother had specifically provided the names and contacts of the Parents on the clinic’s contact sheet, the clinic contacted Ms Fontaine – as opposed to the Grandmother – in order to seek a change in the child’s ultrasound appointment. Mrs Letourneau then showed up at the previously scheduled appointment with Traci only to be told that the date of the ultrasound had been changed.

When the Grandmother contacted Ms Fontaine to find out what had occurred, the Mother responded by saying that she did not think that the Grandmother needed to know about the change in the appointment despite the child being in Mrs Letourneau’s primary care. [ 71 ] Mrs Letourneau spoke of her own efforts to keep the Parents informed as to issues facing Traci and Elliot. As an example, she spoke about Elliot’s required dental care.

Contrary to the Mother’s testimony, Mrs Letourneau said that she and her son specifically told Ms Fontaine of the younger child’s precarious dental situation, but the Mother insisted that she needed confirm that Elliot required surgery despite Mrs Letourneau provision of the child’s dental forms to Ms Fontaine. The Grandmother noted that the Mother has not contributed to the financial cost of any of the treatment. [ 72 ] She does not believe that the Mother’s parenting nor her home environment is in the best interests of the children.

Mrs Letourneau has noticed that upon Elliot’s return from his visits with his Mother, the child often expresses his anger at being ignored by Ms Fontaine. Mrs Letourneau understood that on at least three different instances, the Mother took Traci for outings leaving Elliot in the care of her partner, Mr Donald.

Over and above, Elliot’s upset, the Grandmother does not feel comfortable with the children’s care being entrusted to a man who Ms Fontaine has known for a limited amount of time and with whom she has “just” started living together. [ 73 ] Furthermore, the Mother’s drug addictions remain a concern, especially in light of the Mother’s history of long standing past abuse. In that regard, Mrs Letourneau pointed out that the Mother is still engaging in alcohol use. [ 74 ] The Grandmother said that both Traci and Elliot are involved in swimming and dance classes. Mrs Letourneau does not

believe that the Mother’s work sch would permit the children’s continued involvement in certain activities. Traci is currently attendingGrade 1 at the same school where she attended Kindergarten. The Grandmother facilitates the nine-minute drive to and from the schoolon an almost daily basis. On occasion, the Father or Ms Wengates helps with the driving, but the Mother has never offered to do so.Meanwhile, Mrs Letourneau has chosen a local preschool for Elliot after consulting both Parents about the same.

The Grandmother hasspent several hours with the teacher to discuss the program and anticipates that things will go well. She does not agree with the Mother’sproposal to have the child attend the preschool at which the latter is employed. The children would have to get up much earlier than theydo now and there would be an inordinate amount of driving time and the potential of treacherous wintertime condition.

Mrs Letourneauis not willing to spend over an hour on the road for each drop off or pick up in order to accommodate the Mother’s proposal. [75] Mrs Letourneau stated her desire and willingness to have the Parents play a role in the children’s lives. She denied that sheapplies different standards to each but admitted that she trusts her son and his wife as they are forthcoming with information. TheGrandmother indicated that Ms Wengates has never hesitated in advising the Grandmother if she suspected the Father was using.

Incontrast, Mrs Letourneau has noted that the Mother has repeatedly lied in the past and conducted herself in an untrustworthy manner.Nevertheless, Grandmother does her best to facilitate any extra parenting time which either Parent requests. THE LAW AND ANALYSIS [76] It is not my intention to discuss each piece of evidence which was presented. There is no obligation on a Trial Justice to do so(Van de Perre v. Edwards, 2001 SCC 60 at para. 10). [77] The Father’s testimony was challenging to follow.

Despite numerous warnings from the Court that it was difficult to ascertainthe timing of the evidence he was providing, Mr Letourneau prevailed in referencing various incidents out of sequence; giving varyingdates of occurrences; and speaking of different events all at once. Often, he did not provide any context about the occurrences of whichhe was talking or failed to explain the circumstances of an incident in a manner that would allow the Court to fully understand what hewas saying. Mr Letourneau admitted that he suffers from post-concussion syndrome and as a result, forgets many things.

Nevertheless, Ifound the Father was consistent about his drug use as well as Ms Fontaine’s and their inability to get along. [78] Similarly, the Court had difficulty with the Mother’s testimony. Ms Fontaine often gave conflicting evidence such as thetiming of her periods of sobriety or the number of relapses she has experienced. Sometimes, the Mother gave answers which were lessthan forthcoming. For example, she specifically denied using any cocaine, but then did not address how the substance was found in hersystem after the youngest child’s birth.

She was argumentative and at times, relied on the semantics of certain questions to avoid givinganswers as seen when the issue of the Mother’s past criminal charges and her PSR arose. [79] In contrast, I found the testimony of the Grandmother easy to follow. She was internally consistent and straight forward in hertestimony. In instances where the parties’ evidence is conflictual, I believe Mrs Letourneau’s testimony. [80] As set out above, the Mother is seeking to change the parenting regime such that the children ordinarily reside with her.

Asparenting time arrangements were finalized on August 7, 2018, with respect to the eldest child, Traci, and on August 6, 2021, for Elliot –the proper test to be applied is set out in s. 34(3) of the Family Law Act (“FLA”). 34(3) Before the court makes a variation order in respect of a parenting order, the court shall satisfy itself that a change in the needs orcircumstances of the child has occurred since the making of the parenting order or the last variation order made in respect of that order,and in making the variation order, the court shall consider only the best interests of the child, as required by

section 18 and as determinedby reference to that change. [81] I reject the Mother’s argument that there is no requirement for a change in the needs or circumstances of the children prior toany variation of the Order taking place. First, a plain reading of the statute makes it clear that such a change is necessary.

Second, thejurisprudence upon which the Mother has based her argument, TM v TA, 2022 ABQB 437 (“TM”), has no application in the case at bar.In TM, the Trial Justice found that no change was required because the then existing Parenting Order was no longer in effect due to thesuspension of the Father’s parenting time as a result of criminal allegations made by the Mother. The appellate court upheld the TrialJustice’s reasoning. In the case at bar, there has never been any formal suspension of the Mother’s parenting time.

Instead, there havebeen instances where the Mother’s parenting time is subject to certain conditions which is a far cry from the case of TM. [82] Gordon v Goertz, (SCC), [1996] 2 SCR 27 (“Gordon”) is helpful in setting out the threshold which isrequired to be met in the Court’s consideration of what constitutes a material change: [13] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change inthe condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) whichmaterially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge whomade the initial order. [83] I note that Gordon was decided in the legislative context of the Divorce Act.

In the case at bar, the Court is considering anapplication under the FLA. The Alberta Court of Justice is a statutory Court and as such, derives its authority only from legislation(Alberta (Director of Child Welfare) v CD, 2004 ABQB 697 at para 15 and Alberta (Child, Youth and Family Enhancement Act,Director) v GD, 2011 ABPC 4 at para 29). S 34(3) mandates the Court to examine whether or not there has been a change in the child’s(emphasis added) needs & circumstances.

There is nothing within the Act which allows a variation to be considered solely on the basis ofa change in the ability of the Parents to meet the needs of the child. While I am mindful that there can be (and often is an) overlapbetween these two factors, I find that the Court’s initial focus must centre on the child’s needs and circumstances. After a determinationthat there has been a change, only then does the Court turn to the best interests’ analysis (TLM v JTM, 2022 ABQB 109 at para 44).

Asstated by Clackson, J. in SB v RJW, 2008 ABQB 239: [13] It is also important to recognize that it is the children who are the focus of the analysis. The parties’ lives may have changed

and that can, of course, have an impact on their children’s lives, but it is change in the needs or circumstances of the children that is the focus of the inquiry. [ 84 ] I find in the case at bar that there has been no material change in the needs and circumstances of the children. While the Father and Grandmother have both noted some concerns with the children’s development, they appear to be happy children who are developing interests of their own.

The evidence of all three Guardians was consistent in demonstrating that the children are well-adjusted and continue to thrive in the same home in which they have resided since their birth. Traci has now begun Grade 1 and Elliot has started preschool. The children are enrolled in and attending the academic level expected for children of a similar age. Both Mr and Mrs Letourneau are taking active steps in working with various third party professionals to obtain a diagnosis with respect to Traci and to see that Elliot obtains treatment for any health problems he may have.

Indeed, Ms Fontaine has not expressed any significant concerns about the children themselves; the care which they are receiving from their Grandmother; nor the environment in which they are being raised. Specifically, I find that there is no merit to Ms Fontaine’s argument that the Grandmother shows inappropriate deference to the Father and has put the children in harm’s way by allowing the Father parenting time for three reasons. First, I am not satisfied that the Father has put the children in harm’s way since he married Ms Wengate.

Second, the unrefuted evidence of Mrs Letourneau is that she continues to monitor the Father’s sobriety and to show up unannounced during his parenting time to ensure that the children are always well cared for.

Third, the GM continues to rely upon the Father’s wife, Ms Wengate, for her assistance which means that she is not willing to solely accept the word of Mr Letourneau as to his homelife. [ 85 ] Due to Ms Fontaine’s failure in meeting the first threshold required to vary an existing Final Parenting Order, I dismiss the Mother’s application as the requisite material change has not been found. [ 86 ] If, however, I am somehow mistaken and the proper test for variation of a Parenting Order requires a further examination of a change in the Mother’s circumstances, s 18 of the FLA mandates consideration of the children’s best interests in any application to vary an existing Parenting Order.

As the Mother is the only party now seeking a change in the parenting arrangements, the majority of my comments will pertain to Ms Fontaine only. I note that not all the factors set out in s 18 have a direct application to the case at bar and as such, I shall only address the ones I find to be relevant. I also note that many of my comments apply to more than one factor set out in s 18. 18(2) In determining what is in the best interests of a child, the court shall (

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

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

i) the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development (ii) the history of care for the child ... (vii) the nature, strength and stability of the relationship (

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

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

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

B) to communicate and co operate on issues affecting the child (

i) the child’s physical, psychological and emotional needs, including the child’s needs for stability, taking into consideration the child’s age and stage of development [ 87 ] In determining the children’s best interests, the Court must ensure the greatest possible protection of the children’s physical, psychological and emotional safety. I find that the Grandmother has been the children’s only consistently reliable caregiver. She has unilaterally provided stability for them since they were born.

Although the Parents have had short periods of intermittent sobriety, the overwhelming majority of their time together was spent in the throes of addiction. By their own admission, neither were capable of taking care of their children on a consistent basis. Their addictions were noted by health professionals at the time of each child’s birth and led to the involvement of CS who stated that the Grandmother had to be an integral part of the children’s Safety Plan.

Both Parents admitted that the Director threatened to apprehend the children unless the Grandmother became a Guardian. [ 88 ] Most recently, both Parents have re-established themselves in relationships and are no longer using fentanyl. The Father, however, engages in regular marijuana use and the Mother drinks on a somewhat regular basis.

Given the scope of their addiction histories and their relatively recent recoveries from fentanyl use, the Court finds that it is the Grandmother who has been the stalwart in providing the greatest protection to the children’s safety. [ 89 ] Specifically, the Mother’s proposal for the children’s schooling as well as their daytime care if they were placed in Ms Fontaine’s custody reveals a lack of appreciation for their needs. The children would need to get up earlier, spend more time on the road and have less one-on-one time with a caregiver who has a personal as opposed to a professional relationship with them.

It appears to the Court that the Mother’s desire to have the children attend her employer’s preschool/daycare is premised much more on her wants than the children’s best interests, especially when one considers that both children may have struggles in a school setting.

(ii) the history of care for the child [ 90 ] Notably, when Mrs Letourneau assumed Guardianship over Traci, she was also given day-to-day parenting by the Court. Similarly, at the time that she was awarded Guardianship over Elliot, the Grandmother also obtained primary parenting. The evidence of all the parties is consistent that the children have always lived at their Grandmother’s home where she has kept a watchful and doting eye on them. Only recently, have the Parents been permitted parenting time with their children without the Grandmother’s supervision.

The history of care for the children irrefutably demonstrates that it has been Mrs Letourneau who has been physically, emotionally and financially responsible for raising them. Perhaps it was Mrs Wengate, the children’s stepmother, who said it best when she opined that structure and routine are important for the children and that the Grandmother provided both. (vii) the nature, strength and stability of the relationship (

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

B) between the child and each person in respect of whom an order under this Part would apply [ 91 ] There was limited evidence of the Grandfather’s role in the children’s lives due, in part, to his out-of-town work arrangements, however I note that the Grandparents have been married for a long period of time (when considering the age of their son, Mr Letourneau). I also note that the Grandfather supports the household by virtue of being the sole breadwinner and by extension, supports his grandchildren.

Furthermore, there is a biological connection between the Grandfather and the children, which leads me to believe that this is an important and stable relationship for Traci and Elliot. [ 92 ] I do not find that the children’s relationship with the Mother’s partner or his family should be accorded much weight. There was some evidence that Mr Donald occasionally cared for Elliot and that his own children get along with the Letourneau children, but I find that the Donald family does not play a major role in the children’s lives for several reasons.

First, there was little evidence to show that Mr Donald and the children think of one another as family – rather it appears that everyone simply has a friendly rapport amongst themselves. Second, the length of the relationship has not been significant. The Mother has only resided with Mr Donald for approximately one year. The Letourneau and Donald children are together for very limited periods, especially when one considers Mr Donald’s own custodial arrangements and the alternating weekends which Ms Fontaine enjoys with her own children.

Third, the stability of the relationship between the Mother and Mr Donald is severely compromised by the fact that he is married to another individual from whom he has not yet even begun divorce proceedings. [ 93 ] I find that Mrs Letourneau has consistently demonstrated her appreciation of and dedication to the significance of the Parents’ role in the children’s lives. Her commitment is seen in her consultation with the Parents on issues where possible and facilitating their parenting time to the best of her ability.

I accept the Grandmother’s evidence that she will continue to support and respect the Parents’ importance in the children’s lives. [ 94 ] To the contrary, I find that the Mother does not have an appreciation for the Grandmother’s significance in the children’s lives. This is seen in her proposal for Mrs Letourneau’s parenting time with the children. If it were up to the Mother, the only primary caregiver the children have ever known would have parenting time for a few hours after school on Fridays.

This is a monumental change for Traci and Elliot and notwithstanding Ms Fontaine’s intention for any change to be gradual, the limited amount of time proposed for the Grandmother reveals a lack of appreciation of how this would affect the children’s relationship with Mrs Letourneau. (viii) the ability and willingness of each person in respect of whom an order under this Part would apply (

A) to care for and meet the needs of the child [ 95 ] The Court’s findings about the Grandmother’s role in caring for and meeting the needs of the children has been previously discussed. I am not convinced that the Mother has a similar capacity to exercise these responsibilities in a way which best protects the children. Over and above Ms Fontaine’s history of substance abuse and the negative effect which it had on her ability to care for the children, I find that she was not diligent with regard to Elliot’s dental needs.

I reject her evidence that she was unaware of his issues until presented with the dentist’s bill. Both the Grandmother and the Father stated that they took steps to advise her of his problems. Ms Fontaine’s initial response was to ignore the messages sent by the Father and then to question the necessity of Elliot’s dental care. Similarly, Traci’s social anxieties and other difficulties have been noticed by her Father, Grandmother and teacher – but Ms Fontaine questions the same.

Her simplistic answer that her daughter merely needs to be in her care and with other children fails to recognize the possibility that there are serious issues facing Traci. It follows that a person who refuses to recognize a problem will not take steps to remedy a situation which they feel does not exist. [ 96 ] The Court also finds it problematic that Ms Fontaine did not discuss the areas of concern provided by the Father when he spoke of Elliot’s rashes or Traci’s allergies. (

B) to communicate and co-operate on issues affecting the child [ 97 ] I find that Mrs Letourneau is the only individual who has the ability and willingness to communicate and cooperate with the other Guardians on issues affecting Traci and Elliot. Not only has she expressed her desire to have the Parents continue playing a role in their children’s lives, she has aptly demonstrated her ability and willingness to accommodate both.

First, she permitted the Mother to live in her home close to the children – even when the Grandmother suspected the Mother’s substance abuse problems and while Ms Fontaine contributed virtually nothing to the household. Second, even after the Mother left the Grandmother’s home, Mrs Letourneau took it upon herself to ensure that Ms Fontaine saw the children.

In order to do so, the Grandmother drove inordinate distances without any type of compensation and provided the supervision for the Mother thereby saving Ms Fontaine the hassle and expenses associated with professional supervision. [ 98 ] Interestingly, all three Guardians characterized the relationship between the Parents as “toxic”. Certainly, the animosity between Mr Letourneau and Ms Fontaine was palpable during the course of their respective testimonies.

I find that the Parents have not yet reached a point in their relationship where they can speak calmly to one another nor to cooperate on issues affecting the children.

They may never do so.

I further find that the Mother similarly lacks the ability and/or willingness to cooperate with the Grandmother.This has been demonstrated by her cavalier attitude in suggesting that the Grandmother, in essence, drive two hours every day to pick upthe children after school; her interference in the children’s health matters (by obtaining second medical opinions without advising MrsLetourneau and unilaterally changing appointments for the children) as well as withholding important documents from the children’sday-to-day caregiver. [99] If Ms Fontaine were to be given the primary role in parenting, I find that there would be a detrimental effect on therelationship between the children and their other two Guardians for two reasons.

First, her past behaviour demonstrates that she wouldnot keep the other two adequately informed about the children. And second, she would not develop a collaborative relationship with themin a way which best benefits the children. [100] For all the above reasons, I also have concerns about the Mother’s ability to exercise the powers, responsibilities andentitlements of Guardianship. [101] As such, I dismiss the Mother’s application to vary the current parenting regime. I do, however, feel that there can be moredetailed terms in the existing Orders in order to provide more clarity to the parties.

Child Support [102] The Grandmother is seeking retroactive and ongoing s 3 child support with respect to the children. She is not, however, seekingcontributions to any retroactive s 7 expenses. Both the Mother and Father agreed that they have not made any regular child supportpayments in all the time that the Grandmother has raised the children. S 50 of the FLA gives the Grandmother the right to apply for childsupport by virtue of her Guardianship status. 50(1) Subject to this section, the court may make an order requiring a parent to provide support for his or her child on application by (

a) the child, (

b) a parent or guardian of the child, (

c) a person who has the care and control of the child, or (

d) any other person with the permission of the court where the court considers the application would be in the best interests of thechild.

(2) The court may make a child support order only if (

a) the parents are living separate and apart, (

b) although the parents are not living separate and apart, (

i) the parents are, in the opinion of the court, experiencing such discord that they cannot reasonably be expected to live together, or (ii) one parent has without sufficient cause refused or neglected to provide the other parent or the child with the necessaries of life,including food, clothing and shelter, when capable of providing them, or (

c) the child is not in the care and control of the parents.

(3) In an application for a child support order, the court may, on the respondent’s application, add as a party any other parent who mayhave an obligation to provide support for the child.

(4) The court may make a child support order against more than one parent of the child.

(5) In an application under this section, the court may make a finding that a person is a parent and in doing so, the court shall haveregard to

Part 1, and sections 14 and 15 apply.

(6) If, on an application under this section, 2 or more persons are alleged to be the biological father of the child and the court (

a) finds on a balance of probabilities that any one of them might be the biological father, and (

b) is unable to determine which person is the biological father, the court may, for the purposes of this Division only, make a finding that each person who in the opinion of the court might be thebiological father is a parent and direct each person to pay child support in an amount the court considers appropriate. [103] The Supreme Court of Canada (“SCC”) outlined the principles of retroactive child support in the seminal case of DBS v. SRG,2006 SCC 37. The Court confirmed that child support is the right of the child as set out in Willick v Willick, (SCC),[1994] 3 SCR 670.

In determining whether retroactive child support should be awarded – the court must balance fairness to the childwith other factors including the reason for delay in seeking child support; the payor’s conduct; the past and present circumstances of thechild and whether the retroactive award might entail hardship for the payor. If the Court finds that the Applicant is entitled to aretroactive award, the award should generally go back to a maximum period of three years.

[ 104 ] Mrs Letourneau first gave notice that she was seeking child support when she filed for the same in April 2023. She said that she did not apply any earlier due to the Parents’ addiction problems and because of her primary focus on the children’s parenting arrangements.

There was no argument made against retroactive child support being calculated for a three-year period, however Mrs Letourneau was only seeking s 3 child support from June 24, 2021, onwards which is the date she began to prevent the Parents from taking the children out of the home. [ 105 ] Mrs Letourneau indicated that since she has become the children’s caregiver, she has received a total of $440 from the Mother with $190 of that amount designated for the eldest child’s school fees.

Ms Fontaine indicates that she has paid $400 in total and has also purchased some of the children’s necessities – although she did not go in any detail.

In light of the GM’s financial burdens through the years, I find that the amount does not factor in any meaningful way the amount owed by the Mother. [ 106 ] The Mother’s Line 150 income from the last three years is as follows: • 2020 $6,500 • 2021 $5,605 • 2022 $40,664. [ 107 ] Notwithstanding some apparent difficulties in Ms Fontaine’s tax returns (ex. in 2020, she claimed care of the children when she clearly did not have such care and in 2021, she somehow paid tuition far in excess of her income), I accept the Mother’s evidence as to her past and current income.

Accordingly, I find that Ms Fontaine does not meet the minimum income requirements of a Parent-payor in 2020 or 2021. Furthermore, I accept Mrs Letourneau’s submission that she is only seeking retroactive child support for a limited period of time. Ms Fontaine’s 2022 income translates to s 3 obligations of $591 per month.

As such, the Court finds that the Mother owes the Grandmother retroactive s 3 child support in the amount of $13,002 (which amount represents the time period from June 24, 2021 to date) calculated as: • 2021 (July – December) = $0 • 2022 (12 months x $591) = $7,092 • 2023 (10 months x $591) = $5,910 • TOTAL $13,002. [ 108 ] The Mother shall also be responsible for ongoing s 3 child support of $591 per month commencing November 2023. [ 109 ] The Father’s Line 150 income from the last three years has been: • 2020 $14,461 • 2021 $497 • 2022 $14,254 [ 110 ] I also find his tax returns to be problematic.

The tax return documents he provided to the Court are incomplete. While he has claimed significant amounts as gross business income, he has not provided any documentation which supports his write-offs from such business income. [ 111 ] Accordingly, the Court has the power to impute income as per s 19(1)(

f) and (

g) of the Alberta Child Support Guidelines Regulation . 19(1) The court may impute the amount of income to a parent that it considers appropriate in the circumstances, and those circumstances include the following: ... (

f) the parent has failed to provide income information when under a legal obligation to do so; (

g) the parent unreasonably deducts expenses from income ... [ 112 ] The Court therefore imputes the Father’s income based on the net profit set out in Line 8519 of his Tax Returns as follows: • 2020 $32,701 • 2021 $18,597 • 2022 $44,519. [ 113 ] Accordingly, I find that the total amount of retroactive child support to which the Grandmother may be entitled from the Father is: • 2021 (July – December) (6 months x $286) = $1,716

• 2022 (12

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