LS v MK, 2023 ABKB 487

Court of King’s Bench of Alberta Citation: LS v MK, 2023 ABKB 487 Date: 20230828 Docket: 4801 167569 Registry: Calgary Between: LS Plaintiff - and - MK Defendant _______________________________________________________ Reasons for Decision of the Honourable Justice Colin C.J. Feasby _______________________________________________________ Introduction [ 1 ] LS (“Mother”) and MK (“Father”) are the parents of two thriving children. LS has not participated in her daughters’ lives for the last seven years. She asserts that MK has alienated the children so that they refuse to spend time with her.

LS seeks a Reverse Parenting Order, sometimes called a Reverse Custody Order, which would remove the children from MK’s home and place them in her exclusive care for a period of three months so that they may re-establish their parent-child relationship.

[ 2 ] The first question to be decided in this case is whether MK alienated the children from LS, whether their estrangement from LS is organic, or some combination of MK’s alienating behaviour and natural causes. The second question is whether it is in the children’s best interests to have a relationship with their mother despite their desire not to have such a relationship. Third, if it is in the best interests of the children to have a relationship with their mother, then it must be determined whether a Reverse Parenting Order or some other remedy is appropriate in the circumstances. Agreed Facts [ 3 ] The parties agreed to the facts set out in this

section of these Reasons. The agreed facts are reproduced in the following paragraphs with minor changes to ensure the anonymity the participants. The agreed facts provide useful background for the analysis that follows in the remaining sections of these Reasons. [ 4 ] The parties met in Bahrain in 2006 and were married on July 29, 2007. [ 5 ] The LS was 38 years old, and MK was 24 years old when they were married. [ 6 ] The parties were married secretly as MK’s mother may not have agreed to their marriage. [ 7 ] LS has one child from a previous relationship, who is an adult.

MK was not aware of the Plaintiff’s child from a prior relationship. [ 8 ] The parties immigrated to Halifax, Nova Scotia in October 2008. [ 9 ] The parties have two children together. The parties’ eldest daughter, RK was born on [redacted for publication] in Halifax, NS.

The parties’ youngest daughter, SK , was born on [redacted for publication], in Grande Prairie, Alberta. [ 10 ] The parties moved to Calgary, Alberta from Grande Prairie, Alberta in early 2012. [ 11 ] After the parties separated, they continued living in the same home, although separate and apart, until the family home sold in November 2015. [ 12 ] The parties entered into a Divorce and Property Agreement on November 24, 2015. [ 13 ] The parties proceeded with a Joint Statement of Claim for Divorce and were divorced by a Judgment granted on May 3, 2016 by the Honourable Justice Strekaf. [ 14 ] The children and MK went to Bahrain for five weeks over Christmas 2015 (Dec 2015 to Jan 2016). [ 15 ] On April 10, 2016, LS went to Thailand to retrain as a cosmetic tattoo artist. [ 16 ] When LS returned from Thailand in June 2016 LS was having regular parenting time, on a

schedule agreed to between the parties.

This continued until September 2016. [ 17 ] On February 3, 2017, the Honourable Justice Eamon granted an Interim Without Prejudice Parenting Order wherein LS was granted four hours of supervised parenting time each week. [ 18 ] On May 4, 2017, the parties entered into a Consent Practice Note 7 (Voice of the Child) Order which was granted by the Honourable Justice Antonio. [ 19 ] On September 8, 2017, LS applied for unsupervised parenting time. [ 20 ] On October 16, 2017, Mike Denis, the PN7 parenting expert rendered his Voice of the Child Report. [ 21 ] On October 19, 2017, the Honourable Justice Kubik ordered that the children and the Plaintiff begin Reunification Therapy and that following two sessions, the Plaintiff would have a supervised visit with the children (which would be supervised by an independent agency and not the Defendant or friends/family as per the February 3, 2017 Order.

Following the supervised visit, it was ordered that there would be two more reunification sessions, and then Reunification Therapy as directed by the reunification therapist. [ 22 ] On December 13, 2017 the Honourable Justice Kubik granted an Order appointing Hanita Dagan as the reunification therapist and setting out the terms for payment of the Reunification Therapy. [ 23 ] On June 15, 2018 the Plaintiff filed an Application for sole custody of the Children and for an Order holding the Defendant in contempt of the Reunification Order.

This Application was adjourned sine die as it was ordered by the Honourable Justice Kubik on July 25,2018 that Reunification Therapy would continue with Hanita Dagan. [ 24 ] On February 8, 2019, following an incident at the children's school, an Emergency Protection Order was granted which prohibited the Plaintiff from contacting the Defendant or the Children. This Emergency Protection Order was set down for review on May 10, 2019. On May 10, 2019, the Honourable Justice Jeffrey granted a Consent Order that stipulated the following: (

a) LS was specifically restrained from being within three (3) meters of MK and the children; (

b) LS shall not attempt to engage the children without MK being present; (

c) If LS intended to attend any event where the children were present, she shall give the Defendant 48 hours advance notice by email

of her intention to attend so MK can advise the children accordingly; (

d) LS shall not otherwise interfere with MK or the children; and (

e) Other standard terms of a No Contact Order. [25] On March 14, 2019 the Honourable Justice Kubik ordered that Reunification Therapy was to continue with Hanita Dagan andthat the children, MK and LS would also participate in counselling individually. The Honourable Justice Kubik further ordered that theparties were to provide her with an update on the counselling by June 19, 2019. [26] On August 13, 2019 the Honourable Justice Kubik suspended Reunification Therapy while the children continued theirindividual counseling with Jean Dunbar.

Jean Dunbar was also to provide her recommendations for how best to facilitate contact betweenthe LS and the children. [27] Jean Dunbar suggested after several sessions with the children that she would “supervise” a meeting between LS, the children,and MK at her office.

This meeting took place on January 9, 2020 and was not successful as the children refused to meet LS. [28] The last case management meeting with Justice Kubik was on March 11, 2020. [29] On March 18, 2021 the parties attended a domestic special with respect to the Plaintiff’s application to set parenting issuesdown for trial, and the Defendant's application for security for costs. The Honourable Justice K.D.

Nixon directed the matter to trial andawarded $2,500 as security for costs. [30] The parties attended a pre-trial conference on September 21, 2021 before the Honourable Justice J.R Ashcroft, wherein theparties were directed to draft a Trial Readiness Order combining directions from Nixon J and Ashcroft J into one Order for ease ofreference. Further processes were set for the trial. [31] The parties completed questioning on September 28, 2021 for MK and September 29, 2021 for LS. [32] Currently, the Plaintiff resides in the neighbourhood of Cranston with her partner.

She is 54 years old. [33] MK currently resides in Airdrie, Alberta with his new partner, their daughter, and the children. He is 40 years old. Parental Alienation and Estrangement [34] Courts put child-parent relationship breakdown into two categories: (1) alienation; and (2) estrangement.

Justice Stromberg-Stein explained the difference between alienation and estrangement in Williamson v Williamson, 2016 BCCA 87 at para 41: Courts have said that the difference between estrangement and alienation lies in the cause; estrangement occurs when the childunderstandably refuses contact with a parent because of that parent’s behaviour, and there is a logical and rational reason for the child’srejection of the parent.

In the case of alienation, it is said there is little or no objectively reasonable cause for the child’s rejection of theparent [citations omitted]. [35] I prefer to explain alienation and estrangement in slightly different terms. Alienation is a breakdown in the relationshipbetween a child and the disfavoured parent primarily attributable to the conduct of the favoured parent. Estrangement is a breakdown inthe relationship between a child and the disfavoured parent that is primarily caused by factors other than the conduct of the favouredparent.

There is also a grey area between alienation and estrangement where the breakdown in the relationship between a child and thedisfavoured parent is a result of both alienating behaviours by the favoured parent and a child’s rational aversion to the conduct of thedisfavoured parent. [36] Expert testimony is not required for a court to determine whether parental alienation or estrangement exist: ID v DB, 2022ABKB 831 at para 58 and VMB v KRB, 2014 ABCA 334 at para 16. “Parental alienation” or “parental alienation syndrome”, as it issometimes called, is not a mental health diagnosis in the Diagnostic and Statistical Manual of Mental Disorders: Snider v Laszlo, (ON SC) at para 45.

Justice Nicholson explained in Malhotra v Henhoeffer, 2018 ONSC 6472, aff’d 2019 ONCA 764, atpara 107: “Parental alienation is a legal concept as opposed to a mental health diagnosis. As such, it is my view that the court can make afinding of alienation based upon an analysis of the facts alone without expert evidence.” [37] Though expert evidence is not necessary to enable a Court to make a finding of parental alienation, court-appointed expertsare often in a better position than the Court to observe and comment on the behaviour of the parties.

Parents in family matters oftenpresent a curated version of their own conduct and a shaded account of the other parent’s interactions with the children. Other laywitnesses, usually family or friends of each parent, inevitably present the parent for whom they are testifying as an ideal parent. Andchildren almost never testify. The result is that the Court must look to court-appointed experts to provide clarity. [38] Family Practice Note 7 and Family Law Practice Note 8 are tools for the parties and the Court to obtain objective expertassessment of the parties’ parenting.

PN7 provides for a range of therapeutic interventions and three different types of evaluativeintervention. Therapeutic interventions are not information gathering exercises, though reports on the therapeutic interventions mayassist the Court in understanding the family dynamic to some extent. The evaluative intervention ordered in the present case, Voice ofthe Child, provides only some of the information required to assess parental alienation.

As will be explained below, the limitations of theVoice of the Child process were accentuated in the present case by the resistance of the children facilitated by MK. [39] The better tool in the context of alleged parental alienation is PN8 which “provide[s] an objective assessment of the family bya Parenting Expert as a litigation aid to assist the Court in addressing the best interests of the children.” A Parenting Expert who hasprovided a PN8 report may also provide viva voce testimony at trial. Unfortunately, a PN8 was not ordered in the present case.

[40] The Court must assess the evidence to determine whether there has been parental alienation or estrangement. There is no legaltest for parental alienation. Instead, the determination is best made using behaviours indicative of parental alienation identified in casesand scholarly literature. Not all behaviours will be present in every case. [41] AGL v KBD, (2009) (ON SC), 93 OR (3d) 409 at para 92 provides an extensive list of behaviours exhibitedby alienated children, behaviours exhibited by alienating parents, and behaviours of disfavoured parents that make alienation orestrangement more likely.

This list was adopted by Nicolas Bala & Katie Hunter, “Children Resisting Contact & Parental Alienation:Context, Challenges & Recent Ontario Cases,” Queen’s Law Research Paper Series, 2016-086, (December 2016) at 8-10. Instead ofreproducing the list of behaviours below, to make these Reasons more readable, I have attached it as Appendix A. [42] The question of parental alienation versus estrangement risks devolving into a contest of blameworthiness. Certainly, in manycases of alienation there will be one parent who is the most guilty.

In other cases, however, alienation may stem from a parent’s mentalhealth problem or other factor that makes the assignment of culpability dubious. In still other cases – and the present case is a goodexample – there is ample blameworthy conduct by both parties. The issue of parental alienation, though important, should not consumethe more fundamental matter before the Court – the best interests of the children. Positions of the Parties [43] LS says that she was the primary caregiver to the children prior to the dissolution of her relationship with MK.

Her view isthat MK was hurt and embarrassed by her decision to end the marriage and has alienated the children to take revenge against her. [44] MK, according to LS, acquired the upper hand by foisting upon her a Divorce and Property Agreement that gave him primaryparenting responsibility. She painted herself as unsophisticated and under the misimpression that she would have the children half of thetime. [45] LS contends that the process of alienation began while she was in Thailand taking a tattoo course for approximately threemonths in 2016.

When she returned, MK had solidified his relationship with the children and the children’s attitude toward her hadchanged. [46] From mid-2016 onward, LS states that MK controlled her access to the children. MK would cancel visits, linger in hisvehicle nearby, and generally signal his distrust of LS. This was followed by calls to the police for what LS considered trivial matters. MK’s hyper-vigilance caused the children to be suspicious and wary of LS.

This culminated in an incident where LS says she found arecording device concealed in the clothing of one of the children. [47] LS submits that MK was incapable of disciplining the children, that he pandered to their selfish preferences, and enabled theiraversion to spending time with her. She further asserts that MK undermined court-directed assessments and reunification therapy. [48] MK rejected the accusations by LS. According to him, he is a devoted parent who only wants the best for his children.

Hesays that he has continually supported contact between LS and the children despite her obvious deficiencies as a parent and the children’sresistance to spending time with her. [49] MK’s position is that the children have independently formed their view of LS and that they quite reasonably do not want tospend time with LS. LS has a negative parenting style characterized by physical discipline including, slapping, pinching, and spanking. LS is self-centred and overlooks or misunderstands the children’s views and needs.

She writes letters to the children that discuss conflictbetween LS and MK, make them feel guilty, dwell on subjects like death that the children find disturbing, and uses nicknames that thechildren do not like. [50] MK further points out that LS’s in person interactions with the children are awkward and even threatening. The children donot enjoy her presence and understandably want nothing to do with her. Evidence of Parental Alienation [51] As a preliminary matter, I must address the use of the reports and letters from the various professionals appointed pursuant toPN7.

Justice Kubik, the case management judge, directed on December 13, 2017 that “[t]he parties may use the letters or reports fromthe Parenting Expert for all purposes in the litigation including trial.” Previous orders appointing PN7 experts contained similarlanguage. This type of direction is permissive with respect to the parties but does not bind the trial judge with respect to the question ofadmissibility. [52] The reports and letters from professionals appointed by the Court are hearsay and even double hearsay because theprofessionals were not called as witnesses.

The letters and reports are presumptively inadmissible.

However, neither party objected touse of these reports and letters and, indeed, both parties relied upon the reports and letters. [53] I find the reports and letters of professionals appointed by the Court pursuant to PN7 to be both reliable and necessary insofaras they speak to the actions of the parties observed by the authors of the reports and letters, the exchanges between the parties and theauthors of the reports and letters with respect to the PN7 interventions, and the statements and actions of the children that occurred in thepresence of the authors of the reports and letters; thus, meeting the principled exception to the rule against hearsay: R v Bradshaw, 2017SCC 35 at para 23.

To the extent that the reports and letters repeat statements by the Father and Mother about the history of the parties’relationship, incidents that took place outside the professional intervention, and disputed matters in issue in this litigation, I do not findthe necessity requirement met as both the Father and Mother testified. [54] During the parties’ relationship, LS was the primary caregiver for the children with MK working to support the family and

taking a secondary caregiver role. The parties continued to cohabitate following separation in the early Fall of 2015. Though the parties’ relationship broke down, both parties appeared to have a good relationship with the children. [ 55 ] SV, a friend of LS and neighbour of the parties prior to their separation, testified that during the period when LS and MK were together she saw LS frequently and their children played together.

She testified that LS looked after the children most of the time and was a good mother. [ 56 ] Pursuant to the Divorce and Property Agreement, the parties had “joint custody” but “the primary residence and day-to-day care of the Children of the relationship shall be with the father, and the mother shall have reasonable and generous access to the Children as agreed between the Parties.” [ 57 ] LS testified that despite the wording of the Divorce and Property Agreement she understood it to give the parties equal parenting time.

She said that MK’s lawyer drafted the agreement and she said that MK told her that the agreement would make the divorce easier and cost less. LS explained that the legal process was unfamiliar to her and was different than in Thailand. LS consulted a lawyer prior to entering into the Divorce and Property Agreement who executed a Certificate of Independent Legal Advice. Given the Certificate of Independent Legal Advice, I conclude that LS’s evidence concerning her understanding of the Divorce and Property Agreement is unreliable. [ 58 ] The parties sold the family home in late November 2015.

MK moved with the children into a new home in early 2016. In March 2016, MK urged LS to get a job because he wanted her to support herself and get out of his house. She moved into an apartment shortly afterward. [ 59 ] MK encouraged LS’s interest in cosmetic tattoos. LS decided to undertake training in cosmetic tattooing in Thailand. LS left for Thailand in early April 2016 and remained there until late June 2016. While in Thailand, she had video calls with the children. [ 60 ] LS says that the children treated her differently when she returned from Thailand.

She believes that during the time when she was away, MK turned the children against her. Though she had parenting time during the summer and fall of 2016, it was irregular and MK would cancel appointments and show up with the children on short notice. [ 61 ] On July 20, 2016, the parties got into a verbal altercation. LS came to MK’s house to pick up the children for her parenting time. An argument between LS and MK ensued when MK refused to let LS take the children. MK called the police. The police reported that both parties accused the other party of attempting to turn the children against the opposite parent.

MK further told police that LS was “slamming [him] on social media.” No charges were laid. [ 62 ] During the summer of 2016 as the parties began to parent the children separately, differences in parenting styles became evident. MK doted on the children and was very permissive. He described his parenting style as gentle; LS considered his parenting style as lacking any control. LS, by contrast, would correct the children’s behaviour using physical punishment including spanking and pinching.

This difference in approach to parenting the children was a significant source of friction between the parties. [ 63 ] On September 28, 2016, during LS’s parenting time at her apartment, LS disciplined the children by hitting them on the hands and legs. The older child called her father who then attended at the apartment. He confronted LS about the incident and took the children back to his home. He then reported the incident to the police. The police attended to meet with the children and to take their statements.

The children confirmed the incident; however, the police noted that there were no visible marks on the children from LS. No charges were laid. [ 64 ] Following the late September 2016 incident, MK significantly curtailed LS’s parenting time. Justice Eamon directed in early February 2017 that LS have supervised parenting time. MK’s brother, FK, who testified at trial, acted as the supervisor. FK described the children’s reluctance to visit with their mother.

He also described what may be characterized as LS’s awkward and inept interactions with the children. [ 65 ] Mike Denis was appointed to prepare a PN7 Voice of the Child report by a Consent Order dated May 4, 2017. His report, delivered on October 16, 2017, speaks only to the views of the children at the time and the events that took place as he tried to complete his mandate. When he met the children, they were 8 and 6 years old. They are now 14 and nearly 13 years old. Mr. Denis’ report sheds light on the interaction between the children and their father at a critical point in time. [ 66 ] Mr.

Denis explained that the children should have the “opportunity to be transported to and from [a] session by each parent.” The purpose of this approach was “to neutralize any perceived influence the transporting parent may have on the children prior to sessions.” Mr. Denis reported “The father transported the children to their initial sessions. The children refused to attend with the writer separately and additionally refused to attend together without the father present. Attempts to have the father leave the room during the session were unsuccessful.” [ 67 ] Mr.

Denis then proposed that the mother transport the children to the therapy sessions. MK said that the children would be afraid to go with their mother. Mr. Denis proposed that MK’s brother accompany LS and the children. MK advised Mr. Denis that his brother did not want to play the role of supervisor. After another possible supervisor was considered, Mr. Denis concluded that “the mother’s presence would not be beneficial to her future parenting time as a ‘passer by’ reunion would not be ideal for relationship building and reintegration.” [ 68 ] Though the behaviour of MK and the children observed by Mr.

Denis is consistent with parental alienation, he discounted the possibility that MK or LS was responsible for the children’s choice of MK as the favoured parent. He observed: It is important to note that the children’s behaviour during this process is likely not due to one parent’s particular influence, but rather they have maneuvered themselves to a place of decision-making related to allocating their own parenting time. As such, they have already made a ‘choice’ about their preferred parent. This ‘choice’ is likely reinforced unwittingly [by] both parents through their conflict.

[ 69 ] When the Voice of the Child process failed, Mr. Denis concluded that “[a]ny further intervention on the part of the Court to directly engage the children’s opinions will only further entrench their position of ‘choice’.” He went on to recommend education and support for the parents and therapy for the children. [ 70 ] Pursuant to a Consent Order granted by Justice Kubik on December 13, 2017, Hanita Dagan was appointed to provide the children with reunification therapy in accordance with PN7. Ms.

Dagan wrote to Justice Kubik on January 14, 2019 to explain why the reunification therapy failed: ...the father did in fact, bring his children in for their first meeting with the mother on July 11, 2018. However, the children were highly resistant. Initially, they refused to enter the building. They did, eventually and with great difficulty, enter my waiting room, but ultimately, refused to enter my office, or meet with their mother, who had been waiting for them. During this time the father was coached as to how he may facilitate this process. However, he stated that the psychiatrist Dr.

Naseer, had told him that, “you cannot force children of this age and that the psychiatrist is an expert.” As stated in my previous letter, there had been 3 prior appointments scheduled for the children’s initial meeting with their mother, which were cancelled at the last moment at the recommendation of other professionals. Consequently, I became aware after the fact, that additional professionals had been involved who had met with the children without the mother’s consent and provided opinions to the father that compromised the reunification work with this family. [ 71 ] Justice Kubik directed Ms.

Dagan to speak with Dr. Naseer, the psychiatrist who had seen the children and upon whose advice MK relied. Ms. Dagan reported that “Dr. Naseer opined that the children suffer from situational anxiety....” This diagnosis was repeated in a letter from Dr. Naseer to the children’s family doctor, Dr. Mir. [ 72 ] Ms. Dagan stated that Dr. Naseer “acknowledged that divorce and separation are not within his area of expertise....” She concluded that “[b]ased on the above information provided by Dr.

Naseer, it appears that working with children of high conflict separation and divorce is outside his scope and area of expertise.” Ms. Dagan further advised Justice Kubik that “I do not see Dr. Naseer’s further involvement as beneficial to the reunification therapy.” [ 73 ] Dr. Terence Singh, the expert psychologist who testified on behalf of LS, opined that Dr. Naseer’s diagnosis of situational anxiety was inappropriate. He explained that situational anxiety is not a medical diagnosis.

Situational anxiety is the stress that an individual feels when confronting a difficult situation; it is a normal response and not a medical problem. I accept Dr. Singh’s evidence on this point. Dr. Singh’s statement that situational anxiety is not a medical diagnosis appears to be rooted in the fact that situational anxiety is not included in the Diagnostic and Statistical Manual of Mental Disorders. [ 74 ] Family reunification therapy is not a walk in the park; it is stressful because it is difficult. Anxiety is a normal part of the process.

Doctors should not issue notes to facilitate parents avoiding family reunification therapy just because it causes their children some anxiety. This is doubly so when a doctor, as in the case of Dr. Naseer, does not understand the full picture or have expertise in working with families involved in high conflict separation. [ 75 ] MK, with the aid of Dr. Naseer, enabled the children’s resistance to reunification therapy and sabotaged Ms. Dagan’s efforts.

The inescapable conclusion, given that MK consented to the order for reunification therapy, is that he acted in bad faith. [ 76 ] In February 2019, some time after the reunification therapy with Ms. Dagan failed, LS decided to attend the Celebration of Learning at the children’s school. The Celebration of Learning is an event where parents are invited to the school to observe the children’s work in a festive atmosphere. LS made this choice because nothing had come of her efforts to see the children through reunification therapy. [ 77 ] LS attended with her new partner, TM.

LS approached the children while TM stood behind her. She reached out to hold the children’s hands and tried to speak to them. The children pulled away and she grabbed them by the wrists to keep them present. The children perceived this as a violent assault and an attempted abduction. They were particularly frightened by the presence of TM, a large man with a white beard, who was unfamiliar to them. [ 78 ] The encounter between LS and the children at the Celebration of Learning was ill-conceived and clumsily effected, but it was not in any real sense a threat to the children.

While the children’s overreaction to the encounter is understandable, MK’s call to the police and subsequent successful application for an Emergency Protection Order is not. The evidence before the Court in this trial falls far short of what is required to satisfy the test for an EPO set out in DCM v TM , 2021 ABCA 127 at para 15 . No doubt this is why when the matter came on for a viva voce hearing, the EPO was vacated by consent in favour of a less restrictive no contact order. [ 79 ] The incident at the Celebration of Learning that led to the EPO is a good example of the troubled dynamic between these parents.

LS, perhaps acting out of frustration at not seeing the children, awkwardly attempted to reconnect with them. The children perceived LS’s clumsy approach as a threat and overreacted. In turn, MK fanned the flames by calling the police and obtaining an EPO. MK’s actions signalled to the children that their fears were valid and that LS represented a grave threat to their safety. [ 80 ] Justice Kubik, undaunted by the Celebration of Learning incident, directed that family reunification therapy continue under the guidance of Ms. Jean Dunbar. Ms.

Dunbar met with MK and the children in December 2019 to discuss how they should be reintroduced to their mother. The children advised Ms. Dunbar that they refused to meet with their mother. Ms. Dunbar reported to Justice Kubik that “I spoke to [MK] letting him know it was his responsibility to bring the children and have them participate in the meeting [with LS]. MK said “he struggled with making his children do this and seeing their mother could retraumatize them.” [ 81 ] The initial meeting between the children and LS with Ms. Dunbar was scheduled for January 9, 2020. When the children arrived at Ms.

Dunbar’s office, they were crying and yelling and refusing to meet with LS. Ms. Dunbar reported that “[a]t that time, I realized [MK] could not manage their behaviours.” [ 82 ] MK cancelled future sessions with Ms. Dunbar saying that the children “had been traumatized by the session and had lost their

trust with [her].” Ms. Dunbar reported to Justice Kubik that “[u]nless [MK] can convince [the children] to meet with their mother, I do not think further counselling will help reunite [LS] with her children. As the children get older, they might feel more comfortable to reach out to their mother.” [ 83 ] LS has written many letters to the children over the last several years. The letters are poignant and reveal the depth of the pain that LS feels over losing her children. But the letters are also inappropriate in many ways. The letters dwell on LS’s feelings of loss and emphasize her love for the children.

The letters speak of the court proceedings and the toll the proceedings are taking on LS. Two of the letters contained photocopied excerpts from a book called Divorce Poison . [ 84 ] The letters also seem intended to make the children feel guilty and reunite with LS out of a sense of obligation. LS wrote in one letter: As I am getting old and not in good shape I always think about you and how much time in this world I have left to see you. I miss you growing up from 5 years. That is the most torture any one can do to a mother. I have lived thru it hoping I will see you one day. ...

It doesn’t matter what other people told you about me, it doesn’t matter what the court order will be. The truth is always be that you are my beloved daughter that I am living my life for. I hope I am not that unlucky people that I do not see you again in my little life that I have left. [ 85 ] Some of LS’s letters discuss death in ways that understandably trouble the children. MK told LS that her preoccupation with death bothered the children, but she persisted nevertheless. Her explanation is that in Thai Buddhist culture death is not something to fear and, as such, it is something that is freely discussed.

Whether or not this is true is irrelevant; what matters is the children find it disturbing. [ 86 ] The most troubling example of LS’s death talk comes from a letter written in April 2023. LS recounted a story that she had seen on the news about an Indian family who froze to death while trying to cross the US-Canada border.

LS wrote, “I look at the girl’s picture, she was 11, and I guess, somehow, she looks pretty much like you.” Though I attribute no malice to LS in writing in this way, it is something that she was told upset the children. [ 87 ] LS’s letters to the children are consistent with the description of her in-person interactions with the children given by FK. I am satisfied that LS’s focus on her own needs and feelings as well as her awkward way of trying to relate to the children in her letters also characterized her limited in-person interactions with the children. [ 88 ] The children each wrote a letter to LS.

The letters from the children make the following points: • Happy living with their father, stepmother, and new sister. • Do not want to see LS. • Do not want to be told by others to see LS. • Do not think that LS loves them. • Believe that LS has hurt them in the past. • LS scares them. • Bothered by LS talking about death. • Do not like the pet names that LS uses. • “You are a very bad mother.” • “My Dad is my world forever.” [ 89 ] The letters cover many of the points made by MK in his testimony and which may be gleaned from his interactions with the PN7 professionals and previous court filings.

It is impossible to determine to what extent these letters represent the unfiltered feelings of the children as opposed to presenting issues the children discussed repeatedly with MK. What is clear, however, is the persistence of the children’s vehement opposition to seeing their mother which was first observed by Mike Denis six years ago. [ 90 ] MK clearly engaged in alienating behaviour. He was unjustifiably over-protective of the children in relation to LS as seen by his lurking nearby during visits and calling the police over relatively minor incidents.

While LS had a different parenting style and sometimes used physical discipline, she did not represent a threat to the children. MK’s hyper-vigilance must have been well-understood by the children and taken as a message that they should fear their mother. He controlled access to the children by cancelling visits with LS and, later, through adept use of the court system. At the same time, he doted on the children and catered to their preferences, especially their desire not to see LS.

As noted earlier, despite agreeing to family reunification therapy he engaged medical professionals to fabricate a justification for avoiding family reunification therapy. Whether motivated by bad intentions or not, MK’s behaviour significantly contributed to the breakdown of the relationship between the children and LS. [ 91 ] LS must also bear her share of responsibility for the breakdown of her relationship with the children. LS, as I have outlined earlier in these Reasons, interacted with the children awkwardly and ineptly after separation.

LS’s use of physical discipline, though minor, distinguished her parenting from MK’s and made a powerful negative impression on the children. The way that LS interacted with the children pushed them away. Her behaviour in the presence of the children was exacerbated by her overwhelming desire to be

with the children and only became worse as MK limited contact between LS and the children. Her efforts at reunification at the Celebration of Learning and in her letters only further pushed the children away. [ 92 ] The binary of parental alienation versus organic estrangement does not fit the present circumstances. MK engaged in alienating behaviours but LS conducted herself in a way that made alienation or estrangement more likely. Assessing culpability for the breakdown of the relationship between LS and the children is of limited value in the present case for determining the best interests of the children going forward. My approach in the following

section of these Reasons is to consider the children’s situation – and that of the parents – as it exists today to determine the children’s best interests. In doing so, I am conscious of the events that led to the current situation and how the parents’ behavioural patterns may affect things in the future. What is in the Best Interests of the Children? The Children’s Current Situation [ 93 ] The children live with MK, his wife, and their three-year-old daughter in Airdrie. MK does much of his work remotely, so he is a constant presence for the children.

The evidence indicates that the children get along well with MK’s wife and that they are very attached to their new half-sister. [ 94 ] The children will be starting Grade 8 and Grade 9 in September. The older child will be attending a high school that starts in Grade 9. The children are thriving in school. Their report cards show that they are performing well academically. Teachers note the children’s enthusiasm for learning, positive interactions with peers, and leadership abilities. [ 95 ] Several witnesses testified about their observations of the children and their current family environment.

All witnesses called on behalf of MK painted a picture of the children happy within a loving family. Two of these witnesses were close friends of MK with whom he played cricket for years and one was MK’s brother, so I do not place significant weight on their testimony. [ 96 ] One witness called on behalf of MK, JC, was not a long-time friend. JC is a youth worker with Child and Family Services. JC met the children and MK through youth soccer where MK was a coach. JC described the children as kind, happy, and sociable.

She said that her children and RK and SK became friends and would spend time at each other’s homes. JC described MK as a compassionate and loving parent who spent lots of quality time with his children. [ 97 ] Grade 8 and 9 can be difficult years for children. But RK and SK appear to be navigating these years well. The evidence shows that they are happy, doing well in school, have many friends, and have a loving family environment. Mother’s Suitability to Parent [ 98 ] Earlier in these Reasons, I observed deficiencies in LS’s parenting. These deficiencies, however, do not mean that she is not a suitable parent.

As a starting point, it should be noted that LS was the primary caregiver for the children during the parties’ marriage and there is no credible evidence that MK was concerned about her ability to parent during their marriage. I also accept the evidence of SV, a neighbour of LS and MK during their marriage, who testified that LS was a loving parent who had a close relationship with the children during her marriage to MK.

All the concerns about LS’s parenting arose in the adversarial context of the parties’ separation and divorce. [ 99 ] LS’s awkward attempts to engage with the children since the separation are not representative of her parenting. Rather, her difficult interactions with the children are inept attempts to overcome the breakdown in her relationship with the children. LS’s desperation to reunite has repelled the children.

If there was an underlying level of trust and understanding between LS and the children, I have no doubt that the interactions between LS and the children would be natural as they once were prior to the separation. [ 100 ] The only real question about LS’s ability to parent is that she sometimes used physical punishment. To be clear, there is no evidence that the physical punishment used by the mother involved significant force or resulted in any injuries to the children.

I am satisfied that the physical punishment in issue was minor and certainly far below the threshold for family violence in the Protection Against Family Violence Act , RSA 2000, c P-27 . [ 101 ] LS testified that she has taken parenting courses and gone to therapy. She says that she now understands that physical punishment is not an appropriate or effective way to discipline children. Dr. Singh evaluated LS as a low risk to the children. I accept both the evidence of LS and Dr. Singh and conclude that LS does not pose a risk to the children.

Best Interests of the Children [ 102 ] LS has much to offer her children, despite their inability to recognize that right now. LS cares deeply for the children and has worked hard to address her deficiencies as a parent. Though she remains an imperfect parent – as all parents are – she is committed to supporting her children and doing what is best for them. [ 103 ] LS has a welcoming home and a stable relationship with her partner TM. She has also re-established a relationship with her adult child from a previous relationship who was raised in Thailand by her father’s family.

That adult child has moved from Thailand to Canada and is temporarily residing with LS and TM. LS has also become integrated with TM’s family and plays the role of grandmother to TM’s grandchildren. [ 104 ] RK and SK are biracial and bicultural, having one parent, MK, whose background is Pakistani and Muslim, and another, LS, whose background is Thai and Buddhist (though she does not practice any religion at present). The children have an interest, whether

they understand that now or not, in being exposed to both sides of their heritage. Getting to know LS and her adult child – RK and SK’s half-sister – would help them to re-connect and better appreciate their Thai roots. [ 105 ] The question, then, is whether there is a way that the Court can assist with re-establishing the relationship between LS and the children that is consistent with the best interests of the children. Justice Kent in NRG v GRG , 2015 BCSC 1062 at para 288 adopted summarized potential court remedies for parental alienation and estrangement discussed in N.

Bala et al., “Alienated Children and Parental Separation: Legal Responses in Canada’s Family Courts,” (2007), 33 Queen’s LJ 79 at 112-34: • Detailed case management and parental conduct orders with cost consequences for non-compliance; • Judicial exhortation urging compliance and emphasizing the emotional harm caused to the children (generally only effective in less severe cases of alienation); • Court-ordered therapeutic intervention where appropriate, while recognizing “force-marching” a child to reunification may in some cases be unrealistic and harmful; • Ordering supervised access/parenting time to allay any child anxiety and possibly pave the way for further strategies to achieve positive relationships; • Suspension of child or spousal support as a sanction to enforce more engagement with the other parent; • Transferring custody from the alienating parent to the rejected parent where expert testimony establishes the long-term benefits will outweigh any short-term emotional trauma to the child; • Terminating access by/parenting time of the alienated parent when the alienation is so entrenched that the “cure is worse than the illness”, recognizing that children do sometimes resume a relationship with a rejected non-custodial parent after a long period without contact, albeit perhaps only in later years. [ 106 ] Stromberg-Stein JA observed in Williamson at para 42 that “[i]f a court finds a parent ‘guilty’ of alienation, that finding does not pre-determine one particular remedy.” The remedy proposed on behalf of LS is a Reverse Parenting Order.

The Reverse Parenting Order proposed would remove the children from their home for a period of several months and cut-off contact between the children and MK. The idea is that this change would provide an opportunity to re-set the children’s views and re-establish the relationship between the children and their mother. [ 107 ] The alternative remedy proposed on behalf of LS is an intensive therapeutic family reunification camp in the United States. The cost, not including travel, is USD $16,000. Counsel for LS has identified similar options in Canada which cost $40,000 or more.

LS seeks to have MK pay for the therapeutic reunification camp. Further, LS sees the family reunification camp as a prelude to a re-set period where the children would reside with her. [ 108 ] A Reverse Parenting Order is a drastic remedy that carries with it significant risk to the well-being of children. John-Paul Boyd, “Alienated Children in Family Law Disputes in British Columbia,” (Canadian Research Institute for Law and the Family, 2015) at 43 outlined factors that must be considered before granting a Reverse Parenting Order:

a) the change must be likely to result in the restoration of the child’s relationship with the rejected parent (if the child’s alienation is too deeply entrenched, the change may not repair the parent-child relationship);

b) the short-term distress of the change must be outweighed by the long-term benefit the change will yield for the child;

c) the rejected parent must have the parenting capacity and emotional health to provide a positive, nurturing environment for the child (arguably, the parenting offered by the rejected parent should be at least as good, if not better, than the parenting offered by the favoured parent); and,

d) the vigour with which the child will resist the change in residence, and the likelihood that the child will engage in adverse behaviours such as running away, self-harm and substance abuse. [ 109 ] Given the children’s staunch opposition to having any contact with LS, I cannot conclude that a Reverse Parenting Order is likely to result in the restoration of the children’s relationship with LS.

Indeed, the evidence before the Court suggests that a Reverse Parenting Order would be met with resistance from the children and could further alienate the children from LS. [ 110 ] Bala et al (2007) suggest at 128 that “it is usually necessary for a parent seeking a variation in custody [due to alienation] to have expert testimony to establish ... that any emotional trauma to the child from the change will be limited in duration.” Such expert evidence was not available in the present case because, as amply demonstrated by the PN7 processes, the children resisted engagement with professionals. [ 111 ] The children are now 14 and nearly 13 years-old.

Children of this age who are determined to resist a significant change in a parenting arrangement can do so despite anything a parent or this Court decrees. They are equipped with cell phones and can easily arrange transportation for themselves. There is nothing to stop the children from leaving LS’s care. Since the children could not return to MK’s home without putting him at risk of being in contravention of such a court order, they might go to a friend’s home or somewhere else that is less safe.

I adopt the words of Justice Friesen in ID v DB at para 81 : Even though I firmly believe that AB and BB do not have reasonable or logical reasons to dislike their mother or avoid spending time with her, I accept that their feelings are genuine. If I reverse parenting and attempt to place AB and BB solely in the care of Ms. D, their irrational hatred for her will only increase, and they will rebel, and almost certainly run away. I simply cannot make such an order; it is not in the best interests of AB or BB.

[ 112 ] A Reverse Parenting Order is not appropriate in this case as it is not in the best interests of the children. I further conclude that the alternative of a family reunification camp followed by a re-set period with LS as primary parent is similarly unlikely to succeed and is, accordingly, not worth the significant expense involved. Conclusion [ 113 ] Re-establishment of a relationship between the children and LS is in the best interests of the children. Forcing re-establishment of the relationship through the drastic remedies proposed by LS is unlikely to be successful and may have the opposite effect.

I grant LS leave to apply to the Court within 30 days of the issuance of these Reasons for a less drastic remedy that would foster the re- establishment of her relationship with the children. I am seized of the issue of the remedy arising from this application only. All other applications in this matter should proceed in the normal course through Family Docket Court. Heard from the 26 th to 30 th day of June, 2023. Dated at the City of Calgary, Alberta this 28 th day of August, 2023. Colin C.J. Feasby J.C.K.B.A.

Appearances: Imogen Jenkins for the Plaintiff Abimbola Delalu for the Defendant Appendix A List of Behaviours Observed in Cases of Parental Alienation Child behaviours • View of parents one-sided, all good or all bad; idealizes one parent and devalues the other • Vicious vilification of target parent; campaign of hatred • Trivial, false and irrational reasons to justify hatred • Reactions and perceptions unjustified or disproportionate to parent’s behaviours • Talks openly to anyone about rejected parent’s perceived shortcomings

• Extends hatred to extended family and pets (hatred by association) • No guilt or ambivalence regarding malicious treatment, hatred, etc. • A stronger, but not necessarily healthy, psychological bond with alienating parent than with rejected parent • Anger at rejected parent for abandonment; blames him/her for divorce • Speech is brittle, a litany; obsessed; has an artificial quality; affect does not match words; no conviction; unchildlike, uses adult language; has a rehearsed quality • Stories are repetitive and lacking in detail and depth • Mimics what siblings report rather than own experience • Denial of hope for reconciliation; no acknowledgement of desire for reconciliation • Expresses worry for preferred parent, desire to care for that parent; or, defensive denial that child is indeed worried about parent Alienating Parent Behaviours • Allows and insists that child makes decisions about contact • Rarely talks about the other parent; uninterested in child’s time with other parent after contact; gives a cold shoulder, silent treatment, or is moody after child's return from visit • No photos of target parent; removes reminders of the other parent • Refusal to hear positive comments about rejected parent; quick to discount good times as trivial and unimportant • No encouragement of calls to other parent between visits; rationalizes that child does not ask • Tells child fun things that were missed during visit with other parent • Indulges child with material possessions and privileges • Sets few limits or is rigid about routines, rules and expectations • Refuses to speak directly to parent; refuses to be in same room or close proximity; • Does not let target parent come to door to pick up child • No concern for missed visits with other parent • Makes statements and then denies what was said • Body language and nonverbal communication reveals lack of interest, disdain and disapproval • Engages in inquisition of child after visits • Rejected parent is discouraged or refused permission to attend school events and activities • Telephone messages, gifts and mail from other parent to child are destroyed, ignored or passed on to the child with disdain • Distorts any comments of child that might justify accusations • Doesn't believe that child has any need for relationship with other parent • When child calls and is quiet or non-communicative, parent wrongly assumes pressure from target parent, or that child is not comfortable with target parent; evidence of bad parenting; does not appreciate that child is uncomfortable talking to alienating parent about target parent • Portrays other parent as dangerous, may inconsistently act fearful of other parent in front of child • Exaggerates negative attributes of other parent, and omits anything positive • Delusional false statements repeated to child; distorts history and other parent's participation in the child's life; claims other parent has totally changed since separation • Projection of own thoughts, feelings and behaviours onto the other parent • Does not correct child’s rude, defiant and/or omnipotent behaviour directed towards the other parent, but would never permit child to do this with others

• Convinced of harm, when there is no evidence • False or fabricated allegations of sexual, physical and/or emotional abuse • Denigrates and exaggerates flaws of rejected parent to child says other parent left “us,” divorced “us” and doesn’t love “ us” • Over-involves child in adult matters and litigation • Child required to keep secrets and spy or report back on other parent • Child required to be messenger • Overt and covert threats to withdraw love and affection from child unless other parent is rejected • Extreme lack of courtesy to rejected parent • Relocation for minor reasons and with little concern for effects on child Parental Behaviours of Target Parent that Make Alienation More Likely • Harsh, rigid and punitive parenting style • Outrage at child's challenge to his/her authority • Passivity or withdrawal in face of conflict • Immature, self-centred in relation to child • Loses temper, angry, demanding, intimidating character traits, but not to level of abuse • Counter-rejecting behaviour • Lacks empathic connection to child • Inept and unempathetic pursuit of child, pushes calls and letters, unannounced or embarrassing visits • Challenges child’s beliefs and/or attitudes and tries to convince them otherwise • Dismissive of child’s feelings and negative attitudes • Induces guilt • May use force to reassert parental position • Vents rage, blames alienating parent for brainwashing child and takes no responsibility