CA v JA, 2023 ABKB 396

Court of King’s Bench of Alberta Citation: CA v JA, 2023 ABKB 396 Date: 20230630 Docket: 4803 179234 Registry: Edmonton Between: C.A. Plaintiff (Respondent) - and - J.A. Defendant (Applicant) _______________________________________________________ Memorandum of Decision of the Honourable Justice G.S. Dunlop _______________________________________________________ 1. Introduction [ 1 ] The parties have four children together, the eldest of whom has been violent against other members of the family. To protect the children’s privacy, I use the following initials in this decision: CA the plaintiff, mother, respondent on this application

JA the defendant, father, applicant on this application RA the eldest child, born April 2008 LA the second eldest child, born July 2010 PA the second youngest child, born April 2013 HA the youngest child, born October 2015 TA the father’s child from a new relationship, born August 2017 [ 2 ] In these reasons when I refer to the children, I am referring to the four children of the marriage. If I intend to include TA, I say so explicitly. [ 3 ] The parties consented to a Divorce Judgment and Corollary Relief Order dated April 2, 2020.

The parenting arrangement set out in that order includes week-on, week-off parenting of all four children of the relationship (RA, LA, PA, and HA). It also orders the father to pay the mother s. 3 child support and relieves the mother of the obligation to pay s. 3 child support until further order of the court. There are detailed provisions regarding s. 7 expenses. [ 4 ] The family for the most part followed a shared parenting

schedule until December 3, 2021 when the father obtained an Emergency Protection Order prohibiting RA from having any contact with the other children including TA. The Emergency Protection Order was extended from time to time and confirmed at a hearing with oral evidence on January 6, 2023.

The Emergency Protection Confirmation Order continues until December 31, 2023. [ 5 ] The father, JA, now applies to vary the parenting order set out in the Divorce Judgment and Corollary Relief Order to reflect the arrangement that has been in place since December 2021: the three youngest children reside primarily with him and RA resides primarily with the mother, CA.

The father also applies to vary child support ongoing and retroactive to December 2021, impute income to the mother, add a provision for recalculation by the Alberta Child Support Recalculation program and dispense with the mother’s consent for the children to receive Covid booster vaccines. [ 6 ] Counsel for the children was appointed by consent order on December 12, 2022. [ 7 ] I heard this application in special chambers without oral evidence. I suggested to counsel during the hearing that my parenting order would be an interim order, not a permanent order.

All counsel agreed. [ 8 ] All parties agree there has been a change in the circumstances of the children as is required for a variation of a parenting order: Divorce Act , s. 17(5) . I agree.

Consequently, the issues are: • what parenting arrangement is in the best interests of the children? • should income be imputed to the mother? • what, if any, order should be made for retroactive child support? • should child support be recalculated by the Alberta Child Support Recalculation program? • is an order dispensing with the mother’s consent for Covid booster vaccines in the children’s best interests? [ 9 ] The parties agree that ongoing child support should be based on the Child Support Guidelines. 2.

Parenting [ 10 ] RA has a history of psychological challenges and behavioural issues preceding the April 2020 Divorce Judgment and Corollary Relief Order. He has aggressive and violent tendencies.

A December 9, 2021 letter from his pediatrician lists his diagnoses as: • Autism Spectrum Disorder • Attention Deficit Hyperactivity Disorder • Tourette’s • Generalized Anxiety • Conduct Disorder. [ 11 ] In a separate letter, also dated December 9, 2021 RA’s pediatrician wrote: After repeated incidents of aggression and violence towards family (siblings and parents) as well as individuals within the community, I provided my profession[al] recommendation in that for safety of all the children and for [RA] to be able to get help that he needed [RA] should be separated from his siblings. [ 12 ] The father’s application seeks an order that he have primary parenting of the three youngest children and that the mother have primary parenting of RA, with reasonable and generous access for each non-residential parent.

The mother’s position in her concise letter

was that the week-on, week-off shared parenting schedule, as set out in the April 2020 Divorce Judgment and Corollary Relief Order, be reinstated. By the time of the hearing before me in special chambers the parents’ positions had moved closer to each other, in part because of the letter submission of counsel for the children, which was submitted after both parents had submitted their concise letters. 2.1.

Primary Residence [ 13 ] The parents now agree that for the time being RA should reside primarily with his mother, CA, and that the other three children should reside primarily with their father, JA, and they both propose that parenting time with all the children for the non- residential parent be increased from the status quo. [ 14 ] The mother hopes that shared parenting will be reinstated in the future, but agrees it is not realistic currently.

Children’s counsel also advised that while RA wants to spend more time with his father and his siblings and get back to shared parenting, RA also thinks they should go slow. 2.2. Father’s Parenting Time with RA [ 15 ] The parents agree that the father should have parenting time with RA two evenings every other week from 5 – 8 pm. After some discussion during the special chambers’ application, the parents agreed that those days would be Monday and Wednesday. 2.3.

Mother’s Parenting Time with Other Three Children [ 16 ] The parents also agree that the mother should have parenting time with the two youngest children, PA, and HA, every second weekend. The mother proposes that that be Friday night to Monday morning and extended for the holiday Friday or Monday on long weekends. The father did not make any submissions regarding the extension on long weekends. [ 17 ] A complicating factor is that the second oldest child, LA, has not seen her mother since April 2022 and does not want to spend any time with the mother presently.

The mother proposes that she and LA begin family reunification therapy, and that for the time being LA have the opportunity to have parenting time with her mother twice per month, as well as a scheduled weekly telephone call. The father is not opposed to family reunification therapy. The father proposes that parenting time for the mother with LA be in consultation with LA.

I did not hear submissions from the father regarding a scheduled weekly call between the mother and LA. [ 18 ] I agree that family reunification therapy should be started for LA and CA (and involving the other children if the therapist thinks that would be helpful). The mother submits the cost of that should be shared as a s. 7 expense, in proportion to the parents’ incomes. The father submits that it should be shared equally because he has had a lot of legal expenses over the past year and a half.

Children’s counsel observed that the parties may be able to receive some funding for family reunification therapy from Legal Aid. I note that the mother has also had legal expenses over the past year and a half.

I order that the costs of the family reunification therapy be shared in proportion to the parties’ incomes, as a s. 7 expense, after any funding available from Legal Aid and other sources has been applied. [ 19 ] I order that the mother have parenting time with the three youngest children, as the mother proposed: every second weekend Friday night to Monday morning and extended for the holiday Friday or Monday on long weekends. However, LA may opt out of that parenting time.

The father shall facilitate a telephone call between LA and the mother on the Tuesday evening prior to the mother’s weekend parenting time, at 7 pm, during which LA and her mother will confirm LA’s intentions regarding participating in the mother’s upcoming weekend parenting time and during which the two may discuss anything else they mutually agree to discuss. 2.4. Telephone Communication Between the Mother and the Children [ 20 ] The mother submitted that she would like the ability to communicate with the children while they are in the father’s care, without going through the father’s telephone.

My understanding from submissions made at the hearing is that LA has her own phone. LA and the mother may communicate using that phone. My impression is that the other children do not have their own phones. The only order I am prepared to make on this point is that the father not interfere with the children telephoning their mother. 2.5. Holidays [ 21 ] The mother requests an order that she have all four children, or alternatively the youngest three children for a week in July or a week in August or both so that they can go on a vacation together. The father did not make any submissions on this point.

I note that the April 2020 Divorce Judgment and Corollary Relief Order called on the parties to agree on a summer parenting

schedule with the mother having the first two weeks in July and the father having the first two weeks in August and the rest of the

schedule being worked out so that neither parent had three consecutive weeks. In that context I find the mother’s proposal to be reasonable for the interim order I am making. The mother shall have parenting time with the three youngest children for the second week in July and the second week in August, unless otherwise agreed by the parties. [ 22 ] The mother also submitted that she should have both Christmas weeks in 2023 with all four children because she has not had the children at Christmas since 2019 and she submitted that other holidays should be alternating between the parents.

Because I received minimal submissions on these points, I am not prepared to vary the detailed provisions about holiday and Christmas parenting time which the parties agreed to in the April 2020 Divorce Judgment and Corollary Relief Order. However, those provisions will be subject to the order resulting from these reasons, particularly with respect to LA and RA. 2.6. Whether RA May Be Present During the Mother’s Parenting Time with the

Other Children [ 23 ] To address the risk of RA being violent against his siblings, the mother proposes that she be present at all times when any of the three youngest children and the eldest child are in her care, or alternatively that the eldest child be out of the mother’s home and in respite care when any of the youngest three children are in the mother’s care. The father does not agree with the eldest child being present when the mother has parenting time with the other children.

The father’s position is that whenever any of the youngest three are with their mother, the eldest must not be there, perhaps in respite care. [ 24 ] The question of whether RA may be in the mother’s home during her parenting time with the other children is the main point of contention between the parents with respect to parenting. [ 25 ] One solution might be for RA to spend time with his father when the other children are in the mother’s home.

However, the father is not prepared to have RA in his home at all because the father’s other child, TA, has complex needs, including: • Cerebral Palsy • Hydrocephalus • Dysphagia • Craniosynostosis • Global Developmental Delays • Motor Speech Disorder [ 26 ] TA also has Post-traumatic stress disorder caused by what he has experienced when he has been around RA. TA’s special needs require that he be cared for in his parents’ home.

Having TA out of the father’s home when the father has parenting time with RA is not an option, at least from the father’s point of view. [ 27 ] To resolve this issue, I have considered the evidence regarding the risk to the other children of being with RA in the mother’s home. That evidence includes RA’s pediatrician’s December 9, 2021 letters, which I quoted earlier in these reasons.

It also includes both parents’ affidavits and the transcript of the oral evidence at the January 6, 2023 Emergency Protection Order hearing. [ 28 ] Both parents agree RA has had behavioural and psychological problems for many years, starting long before the Divorce Judgment and Corollary Relief Order. [ 29 ] The father, in his February 14, 2023, affidavit, describes violent behaviour by RA toward other family members including giving PA a black eye, smashing HA’s head into a concrete wall, and threatening to kill LA.

The mother in her March 3, 2023 affidavit describes some of these incidents as accidental or unexplained. According to the mother, RA is rarely violent with his siblings, but is frequently violent against adults, including his parents. [ 30 ] According to the father, RA’s behaviour became more dangerous in 2021 and began to affect the other children’s physical, mental, emotional, and psychological wellbeing. He also states that RA has threatened to burn down each parent’s home while they are sleeping.

According to the father, RA has escalated his behaviour in public places and has attacked his teachers, school administrators, education assistants, classmates, his grandmother, a pharmacy technician, and children in the neighbourhood. It is not clear from the father’s affidavit when those things happened. In August 2020, RA hit his grandmother in the face in her home.

In 2020 or 2021 when he was in Grade 7, he threatened to slash a classmate while holding a knife in his hand. [ 31 ] Between January and April 2020 RA made several threats and physically assaulted classmates, teachers, and support staff at his school, resulting in him being expelled. [ 32 ] On November 18, 2021 there was an altercation between RA and his father during which RA grabbed the father’s genitals and kicked the father in the head.

Between then and January 2023 there were no arguments between the father and RA, but they had much less contact following the Emergency Protection Order in December 2021. [ 33 ] Before December 2021 medical professionals and the police had advised the parents not to leave RA at home by himself. [ 34 ] From December 2021 to March 2023 RA has spent time with the other three children on six occasions: • they attended a movie together in January 2022 • they had dinners together in March and April 2022 • they went to sporting events together in September and October 2022 and February 2023 [ 35 ] The father was present for all those visits.

According to the mother, those visits went well, and the other children did not appear to be anxious or afraid of RA. According to the father, the other children kept their distance from RA during those visits. RA has not acted violently toward the other children during those visits and RA has not threatened any of the other children since December 2021. [ 36 ] The mother indicates in her March 3, 2023 affidavit that RA’s behaviour has improved since December 2021 in that he is physically violent less often.

Nevertheless, the mother admits that both she and the father have called the police for assistance with RA more than 26 times between January 2021 and January 2023 the most recent being in November 2022. In December 2022 RA threatened

to harm himself in the mother’s home by drinking radiator fluid and bleach. At some point he attempted to slash his wrist with a broken glass casserole pan. [ 37 ] RA assaulted a teacher in March 2022 and was convicted of assault with a weapon and sentenced to six months’ probation in July 2022. [ 38 ] In September 2022 RA was suspended from riding the bus to school because he threatened another student and the bus driver.

In November 2022 he threatened to rape a classmate. [ 39 ] The mother keeps all the knives in her home locked up when RA is there. [ 40 ] The mother says RA has not threatened or been violent with the other children in her home, but she admits he hit HA across the face with a rake and pushed HA which caused HA to trip into a wall causing a concussion. [ 41 ] The January 6, 2023 Emergency Protection Confirmation Order includes a provision that it will not be a breach if RA is in respite care in the mother’s housing complex, provided the mother provides the father with notice of the details at least 24 hours in advance. [ 42 ] In her June 2, 2023 affidavit, the mother says that RA has not had any violent incidents since March 2023. [ 43 ] The mother says that RA would like to spend more time with his siblings.

According to the children’s counsel, RA would like to spend more time with his father and his siblings, eventually resuming the week on week off parenting schedule, but starting slowly. The children’s counsel also reports that the other children are open to seeing RA, provided their father is present. [ 44 ] I find that for the time being it is in the children’s best interests that RA not be present when the mother has parenting time with the other children, because there is a substantial risk that RA will harm one or more of the other children physically or psychologically.

Consequently, I order the following: • RA shall reside primarily with his mother, CA. • LA, PA, and HA shall reside primarily with their father, JA. • JA shall have parenting time with RA every other week on Monday and Wednesday evenings from 5 to 8 pm. • CA shall have parenting time with LA, PA, and HA every second weekend, but LA may choose not to attend. • CA and LA shall have a telephone call at 7 pm on the Tuesday prior to CA’s parenting weekend. • CA and LA shall participate in family reunification therapy to be paid for by the parents in proportion to their incomes, after Legal Aid and any other funding has been applied. • LA shall not interfere with any of the children telephoning CA. • CA shall have a week of parenting time with the three youngest children the second week of July and the second week of August. • the other provisions regarding holidays remain as set out in the Divorce Judgment and Corollary Relief Order. • RA shall not be present during CA’s parenting time with LA, PA, and HA or any of them. • the parents may depart from the above provisions by agreement. [ 45 ] In addition, I add a provision that RA may be within 100 metres of CA’s home during her parenting time with any of the other children, provided he is in respite care with at least 24 hours advance notice to JA.

I add that to mirror the provision in the Emergency Protection Confirmation Order. 2.7. Emergency Protection Order [ 46 ] The application before me is in the divorce action (4803 179234) in which the parties are the parents, JA and CA. The Emergency Protection Order was issued and confirmed in a separate action (FL03 66440) in which the father, JA, is the claimant on behalf of LA, PA, HA and TA and RA is the respondent.

In the special chambers hearing on June 16, 2023 the mother submitted that I should vary the provisions of the Emergency Protection Confirmation Order, and the father submitted that I should revoke it. I am not prepared to revoke or vary an order in a different action made by a different Justice, except on consent. If the parties in the family file (FL03 66440) consent to an order revoking or varying the Emergency Protection Confirmation Order, then I would be prepared to grant that order.

I note that RA is the respondent in that action and that it appears from the transcript of the hearing in January 2023 that the mother’s counsel acted for RA in that application. I also note that RA is represented by children’s counsel on the application before me. Perhaps one of those lawyers could obtain RA’s instructions regarding a revocation or variation of the Emergency Protection Confirmation Order.

For the moment, the Emergency Protection Confirmation Order remains in force. [ 47 ] However, the Emergency Protection Confirmation Order includes the following provision in paragraph 11: This Order is subject to the terms of any parenting order granted on a future date by a Court of competent jurisdiction. [ 48 ] Based on that provision, RA will not be in breach of the Emergency Protection Confirmation Order while he has parenting time with his father in accordance with this order, including as varied by consent of both parents, even if that parenting time is in the

father’s home or in the presence of TA or the other children. 3. Imputation of Income to Mother [ 49 ] The mother states in her March 2023 affidavit that her income in 2022 was a little over $26,000. She works as an educational assistant working 30 hours per week which she described in her questioning in November 2022 as working full-time. She works 8:30 am to 3 pm Monday to Friday.

She has an Arts degree and an Education degree, but she does not have a permanent certificate from the Alberta Teachers Association. [ 50 ] The father’s concise letter calculates the mother’s income to be $34,548 based on figures that are not in evidence before me, being 48 weeks of work at $22.90 per hour and 4 weeks of Employment Insurance at $393 per week. The mother her March 2023 affidavit states: I work part-time and have to have a flexible

schedule to allow me to parent [RA]. I have never earned the $35,000 that [JA] claims is possible for me. [ 51 ] I conclude from the extensive evidence regarding the challenges RA presents and his frequent suspensions from school that it is not realistic for the parent who is primarily responsible for him to work full time. I also conclude that working as an educational assistant is appropriate for CA given her education degree but lack of a permanent teaching certificate. I therefore conclude that if CA is under-employed, it is required to meet JA’s needs.

For that reason, I decline to impute any additional income to her. Based on her evidence I find that her income was $26,000 in 2022 and will be $26,000 in 2023. [ 52 ] Based on the father’s evidence in his February 14, 2023 affidavit, I find that his income was $65,000 in 2022 and will be $65,000 in 2023. [ 53 ] The father shall pay the mother s. 3 and s. 7 child support for JA and the mother shall pay the father s. 3 and s. 7 child support for the other three children, based on the incomes I have found, effective July 1 2023.

I make no change to the detailed provisions regarding s. 7 support set out in the April 2020 Divorce Judgment and Corollary Relief Order. 4. Retroactive Child Support [ 54 ] The father paid the mother child support for all four children until April 2022, even though three of them had been primarily residing with him since December 2021. He paid what he calculated to be an offset amount of $130 in May, June, and July 2022.

After the mother registered the Divorce Judgment and Corollary Relief Order, the Maintenance Enforcement Program began enforcing full child support for all four children from the father, together with a set amount toward arrears, starting in August 2022. That continued until the father obtained a stay of enforcement in October 2022 based on losing his employment in September 2022.

He obtained new employment in November 2022 and the Maintenance Enforcement Program resumed collecting child support for all four children from the father based on the 2020 Divorce Judgment and Corollary Relief Order. [ 55 ] The father submits that I should order retroactive child support based on three children living primarily with him and one child living primarily with the mother, from December 1, 2021 onward.

The mother submits that would not be fair as the change in parenting in December 2021 was a result of an Emergency Protection Order that the father obtained unilaterally. [ 56 ] I agree that month of December 2021 was transitional and that it would not be fair to order retroactive child support starting December 1, 2021.

However, given that child support is the right of the child, I order retroactive child support starting January 1, 2022 and continuing to June 30, 2023 based on the father having primary parenting of three children and the mother having primary parenting of one child, and based on the parents incomes of $65,000 for the father and $26,000 for the mother. This will result in the father having made an overpayment. He included a calculation of that overpayment in his February 14, 2023 affidavit, but it assumed the mother’s income to be $35,000.

I leave it to the parties to do that calculation and insert the correct figure in the order flowing from these reasons. The refund of the overpayment may be enforced by the Maintenance Enforcement Program. 5. Child Support Recalculation [ 57 ] The mother takes no position regarding having child support recalculated by the Alberta Child Support Recalculation Program. I agree with the father’s submission that doing so will reduce the potential for future conflict and costly court applications. I so order. 6.

Covid Booster [ 58 ] The parties have provided me with little evidence regarding whether it is in the children’s best interests that the mother’s consent be dispensed with for the children to receive Covid vaccine boosters.

The father’s affidavit states that the mother consented to the children receiving the first two vaccine shots but refused his requests for her approval of the boosters in August and October 2022. [ 59 ] The mother states in her March 3, 2023 affidavit: I think that the evidence about the booster’s value is less complete and verified than for the initial vaccine, which is why I have not consented to that at the present time.

[ 60 ] The mother cites no authority for that statement. [ 61 ] The Alberta Court of Appeal in Holden v Holden 2022 ABCA 431 at para 99 ff noted that courts throughout Canada have taken judicial notice of recommendations of federal and provincial authorities regarding Covid vaccines, specifically that they are effective at reducing the severity of disease and that they almost never cause any harm.

At paragraph 108 of Holden the Court of Appeal writes: Common sense dictates that chambers judges, when considering which parent should have COVID-19 decision-making authority, should focus on the well-known positions adopted by Health Canada, Alberta Health Services, Canada’s National Advisory Committee on Immunization, and the United States’ Advisory Committee on Immunization Practices, the ability of each parent to rationally assess the recommendations of Health Canada, Alberta Health Services and the National Advisory Committee on Immunization, and the particular needs of their children.

The parent that is most likely to make a rational and reasonable decision in the child’s best interests should be authorized to make this important decision. [ 62 ] The mother has not cited any evidence or authority for the proposition that it would not be in the children’s best interests to receive Covid vaccine boosters. In her concise letter she submits: This is a relatively minor issue between the parties. [CA] does not consent to the booster vaccines but will ensure that they occur if the Court orders them.

However, her position is that this is not an issue which demands Court intervention – like flu shots, they may be recommended but are not critical to ensure the Children’s health. [ 63 ] The mother’s position that the children should not receive recommended health care unless it is critical to health, is not rational or reasonable. I find that it is in the children's best interests for the father to make this decision for the children. I therefore dispense with the mother’s consent for the children to receive Covid vaccine boosters. 7.

Conclusion [ 64 ] I dismiss JA’s application to impute income to CA and grant the balance of his application, varying on an interim basis the parenting ordered in the Divorce Judgment and Corollary Relief Order to what I have set out above, ordering ongoing child support effective July 1, 2023 and child support retroactive to January 1, 2022 pursuant to the Child Support Guidelines based on the three youngest children residing primarily with JA and the eldest child residing primarily with CA, and based on their incomes set out above.

I also order recalculation by the Alberta Child Support Recalculation Program, and I dispense with the mother’s consent for Covid vaccine boosters for the children. [ 65 ] If the parties are not able to agree on costs, they may

schedule a one hour hearing before me on that issue. Heard on the 16 th day of June 2023. Dated at the City of Edmonton, Alberta this 30 th day of June 2023 . G.S. Dunlop J.C.K.B.A. Appearances: Christopher A. Jackson for the Plaintiff (Respondent) I. Sandra Badejo for the Defendant (Applicant) Dustin J. Tkachuk for the Children