A.L. Applicant v. M.P., 2023 NBKB 74

A.L. v. M.P. – 2023 NBKB 74 FDC-144-2019 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF CAMPBELLTON BETWEEN: A.L. Applicant -and- M.P. Respondent Topic: Decision-making responsibility and parenting time BEFORE: The Honourable Mr. Justice Larry Landry AT: Campbellton, N.B. DATE OF HEARING: March 15 and 16, 2023 DATE OF DECISION: May 4, 2023 APPEARANCES: Mr. Jason Godin, for the Applicant Ms. Julie Mallet, for the Respondent

DECISION [TRANSLATION] Landry, J.: [ 1 ] A couple is fighting over custody of their daughter, who was eight years old at the time of separation. Each of them now wants to have decision-making responsibility and the majority of the parenting time. [ 2 ] A.L. and M.P. separated in the summer of 2019. Initially, the parents shared custody, but soon after, the father started having difficulties to see his daughter. A few months later, he filed his notice of application to obtain what was then called shared custody.

It took almost three and a half years for his application to be heard. [ 3 ] In the meantime, the father filed notices of motion to be able to spend time with his daughter. Several court appearances were made, and a few interim orders were issued. As a result, A.L. was able to see his daughter on a regular basis, but he regularly experienced access problems. [ 4 ] On June 21, 2022, the mother was found in contempt of court for preventing the father from seeing their daughter. The police and child protection services also had to intervene in this case.

Since the contempt order last year, the parenting time between the father and daughter has been respected. [ 5 ] The main issue here is to decide what is in the best interest of K.P., who is now 12 years old. Should she spend equal time with both her parents or live primarily with her mother? And who should have decision-making responsibility? Background [ 6 ] The parties are not married but were in a relationship for about 14 years. When they became a couple, A.L. already had three children, while M.P. had one daughter. All of those children are now adults. [ 7 ] A.L. and M.P. decided to have a child together.

Even though A.L. is not the biological father, it was agreed from the beginning that his name would be on the child’s birth certificate and that he would be her real father. He was the one who took parental leave when K was born. In the eyes of the law, he is the father, with all the rights and responsibilities that come with it. [ 8 ] While they were living together, both parents were actively involved in the child’s life. Parties’ positions [ 9 ] In his application, A.L. sought joint or shared custody of the child or, failing that, free and generous access, in accordance with the terminology used at the time.

However, at the beginning of the hearing, he changed his position and made a motion to amend his application, which I granted. He now wants to be given full decision-making responsibility. At the end of his testimony, he also asked for the majority of the parenting time or, failing that, at least half.

In his closing address, however, his lawyer clarified that the father is asking that parenting time be shared equally between the two parents. [ 10 ] For her part, M.P. asked in her responding document filed in 2020 that parenting time between K.P. and her father be reduced and that it be based on the child’s wishes. In an affidavit filed two years later, she asked for decision- making responsibility and the majority of the parenting time.

[ 11 ] In her pre-hearing brief, she stated that A.L. should not be granted any access. However, at the beginning of the hearing, her lawyer clarified that the mother does not want to sever the ties between the father and the child. During her testimony, the respondent seemed to favour a situation where the child decides if and when she will see her father. In her final arguments, she asked for the majority of the parenting time with free and generous contact between father and daughter.

Otherwise, she favours structured parenting time, as they have had since last June. [ 12 ] What is more, the last orders in effect provided for police intervention to ensure that the father’s parenting time was respected. The father has had to rely on these orders in the past and is asking that this measure remain in place. The mother, on the other hand, wants it to be cancelled. “Voice of the Child” assessment [ 13 ] In June 2020, the parties agreed that a “Voice of the Child” report would be prepared for the hearing of this application. The author of the report, Ms.

Rita Godin, K.C., met with the child once, in December 2020, and immediately prepared a report, [1] given that the application was originally scheduled to be heard less than two weeks later. In the end, the hearing was cancelled, and the case was heard only two years later. [ 14 ] Essentially, at the time, the child expressed her desire to spend most of the time at her mother’s house. She made it clear that she did not want to spend more time at her father’s house, for example, one week at a time.

She did not like the situation at the time (and until the hearing of the application), which was to spend three days every other weekend at her father’s house. In fact, she added that she did not like sleeping at her father’s house. [ 15 ] She then told Ms.

Godin the reasons why she did not like to go to her father’s house: floors and bed covers unwashed or not washed enough, always the same thing to eat, sadness when she was there because she missed her mother and her dogs; sometimes she was alone with her father’s spouse, and she did not like to be in the same room as the children of her father’s spouse. [ 16 ] K.P. still confirmed that she wanted to continue visiting her father, but for shorter periods of time, for example, from 1 p.m. until after supper every other weekend, Saturday and Sunday.

The author of the report emphasized that K.P. loves her father and does not want to hurt his feelings. She was satisfied that the child was clearly expressing her wishes. She found that the child was very comfortable during the interview but became sad and nervous when she talked about the visits to her father’s house. The best interests of the child [ 17 ] Any decision regarding K.P. must be made with only one concern, namely the best interests of the child. Some of the factors to be considered in determining the best interests of the child are found in

section 50 of the Family Law Act . [2] In determining the best interests of the child, primary consideration must also be given to K.P.’s physical, emotional and psychological safety, security and well-being. [ 18 ] The child is autistic, but that does not seem to be a major factor in this case. She was diagnosed with autism before she started school. The mother then completed a college program in autism and behavioural intervention. Together with another person, she opened a centre for children with autism, but it closed less than a year later.

K.P. still attended the centre and received medical attention in the area. Then, when she started school, she used specialized services and an educational assistant. She is now functioning at a high level and no longer needs special care at school or at home. Her mother says that her autism does not [TRANSLATION] “show”, that it is mild.

[ 19 ] In her December 4, 2019 affidavit, L.T., the father’s current spouse, stated that she, too, has an autistic son and that her other children are therefore used to being around a child with autism and know that they have to give them space, if necessary. [ 20 ] K.P. is doing well at school, and both parents are very involved in their daughter’s education. Together, they have chosen to send her to a French school. The father attached notes from his daughter’s teachers to his November 1, 2019 affidavit, showing his active involvement in her schooling.

During the COVID-19 pandemic, both parents agreed that their daughter would be homeschooled, and it was her mother who took care of it. [ 21 ] In her affidavit of November 25, 2019, the mother pointed out that at her house, the main language is French, while at the father’s house it is English. According to her, the father cannot really help his daughter with her French homework. During his testimony, the father switched easily from one language to the other.

Although he said that when writing, he is more comfortable in English, he also said that he had attended French school and could help his daughter. [ 22 ] A child’s cultural and linguistic heritage is one of the factors to be considered when considering their best interests. However, in this case, neither the father nor the mother seems to place much importance on their daughter being exposed to the French language outside of school. Even though the mother’s spouse is a Francophone, the mother still seems to speak to her daughter in English. When the mother testified, she chose to do so in French.

However, when she related discussions she had had with her daughter, she related them in English. On the video recordings filed in evidence, the mother and daughter also spoke almost exclusively in English. [ 23 ] Thus, both the mother and the father seem to leave it to the school to ensure that their daughter retains French as part of her linguistic heritage. The parents should also be involved, but they do not seem to have any interest in doing so.

On the other hand, the author of the “Voice of the Child” report mentioned that the child is fluent in both languages. [ 24 ] K.P. has had a strong bond with both parents since birth and lived a family life with them until she was eight years old. Her mother also has another daughter, but she grew up with her maternal grandparents. K.P. nevertheless has a relationship with her, but there was little mention of it in the evidence. The same is true of the relationship she has or does not have with her siblings on her father’s side. [ 25 ] The father has never tried to cut the mother out of the child’s life.

In fact, he wants K.P. to split her time equally between the two homes. However, he believes that, since shortly after the separation, the mother has done everything she could to keep their daughter away from her father. He mentioned parental alienation caused by the mother. [3] [ 26 ] It is very difficult to demonstrate whether or not there is parental alienation. However, one can look at the evidence to see if a parent truly favours the development and maintenance of a relationship between the child and the other parent.

In this case, it is clear that the mother has taken the position from the beginning that it is for the child to choose where she wants to go. For example, in her June 4, 2020 affidavit, [4] M.P. refers to a USB drive she submitted at the court the day before. The drive contains several videos and recordings of phone messages. [ 27 ] We see several interactions between the mother and daughter, and most of the time, it is clear that it is not the mother but her daughter who decides.

Sometimes, K.P. says she is afraid of her father, but most of the time, she just says that she does not want to answer his calls or go see him. A.L. has had to bring the case back before this court several times to get his parenting time back. [ 28 ] On June 19, 2020, this court had to issue an order allowing police officers to intervene to enforce parenting time. M.P. has repeatedly failed to comply with court orders. She says she simply cannot convince her daughter to go see her father. [ 29 ] She also called child protection services. Valérie Savoie, a social worker, testified at the hearing.

She confirmed that she had to investigate after the mother made a report. M.P. alleged that there was psychological abuse and that K.P. was afraid of her father. Valérie Savoie confirmed that the child had said that she was afraid and that she did not want to go to her father’s house because he was not nice. But after the RCMP intervened to force K.P. to go to her father’s house, in January 2022, Valérie Savoie went to A.L. to see K.P. and found that she was happy to be there and felt safe. The social worker found nothing of

concern. She later closed the case, being satisfied that the child was safe with her father. [ 30 ] In the summer of 2022, M.P. was found in contempt of court because she had failed to comply with the parenting order in effect. The father was allocated additional time; since then, the child has not thrown any fits when the time comes to go to her father’s house. During her testimony, M.P. said that the child had not thrown any fits in the past year because she knows she has to go to her father’s house.

She also explained that she had told her daughter, [TRANSLATION] “Go to daddy’s house, or I'll go to jail.” She further stated that she had tried several ways to convince her, but that this was the only one that had worked. [ 31 ] Since June 2022, everything has been going relatively well. Parenting time is being respected, the child is no longer throwing any fits, and the two parents have even cooperated well on a couple of occasions. [ 32 ] After the separation, the parents shared parenting time. However, this situation did not last long. There is no need to go into detail.

Suffice it to say that both ex-spouses have some fault, and as in many cases, the period right after separation was affected by emotions on both sides. In this case, a third party, who was a good friend of the mother, apparently became involved in a polyamorous relationship first with the mother and father while they were still living together and later with the father and his new spouse. I am not making any factual determination in this regard, as it is irrelevant to the issues before me.

However, these relationships may have affected the parties’ behaviour with each other. [ 33 ] In addition, the Family Law Act provides that the child’s views and preferences must also be considered, giving due weight to the child’s age and maturity. Unfortunately, when the “Voice of the Child” report was drafted, K.P. was only 9 years old, and now she is 12. Her level of maturity is not the same. I will therefore give little weight to the report prepared in 2020.

The mother testified that the child still has the same preferences and does not want to spend as much time with her father as she does with her mother. [ 34 ] It is clear that each parent is able to take care of the child. In her final arguments, the mother’s lawyer confirmed that she does not have any concerns when the child is with the father. She added, however, that the child should be able to choose. [ 35 ] For the first two years after separation, communication between the parents was very difficult. More recently, however, the situation has improved.

For example, when a problem arose at school, both parents went together to meet with the principal. They also agreed when it looked like a dog belonging to K.P. and her mother was terminally ill in order to change the parenting time

schedule and allow the child to spend more time with her dog. [ 36 ] This seems to have had a positive effect on the child, who has witnessed that her parents are able to talk to each other without arguing. Parents do not always realize that when they attack the other parent in front of the child, they are also hurting the child. [ 37 ] In their initial affidavits, A.L. and M.P. accused each other of psychological abuse. Abuse is all too common in a couple’s relationship and, of course, affects the children, even without physical abuse.

The father accused the mother of hitting him in the face during one exchange of the child after the separation, while the mother said she had raised her hand to protect herself because she thought she would be the one to be hit. Almost four years later, things have calmed down, and the evidence does not lead me to believe that violence is a major concern in this case. [ 38 ] The parents will still need to continue to be courteous in the child’s presence, as she is clearly affected by what is going on around her or even when one parent talks about the other.

In fact, the parents’ behaviour in general can be harmful. [ 39 ] In this case, both parents filmed each other and said things against the other parent in front of the child. When the child was handed over to the other parent in the parking lot of a mall, a maintenance worker witnessed the father yelling [TRANSLATION] “at a child”. [5] It was the father yelling at K because she did not want to go with him. Inasmuch as the mother said she did not know what to do when she was unable to convince her daughter to go with her father, on June 8, 2020, the father reacted inappropriately.

On a few occasions, he also left sarcastic messages on the mother’s voice mail.

[ 40 ] The mother, on the other hand, allowed the police intervention and the “Voice of the Child” report to be published on social media. She testified that her oldest daughter had had access to these documents and had posted them. Whether it was her or her daughter who posted them, this is totally unacceptable, and she must bear responsibility for it. She has apologized for it in court. [ 41 ] She also said that her daughter had probably overheard her saying that A.L. was not her biological father, which K.P. did not know and which both parents had agreed not to tell her, at least not at that time.

This certainly had a significant impact on the child. For a period of time, she refused to call her father Dada, as she had always done; instead, she called him by his first name. When the police tried to convince her to go to her father’s house, she replied that he was not her father.

Decision-making responsibility [ 42 ] While both parties have acknowledged that their relationship was toxic, especially in the last few years during which they lived together and after their separation, they have shown, ever since she was conceived, that they are able to put their differences aside when it comes to making decisions for K: care for autism, choice of school, homeschooling during the pandemic, etc. [ 43 ] I believe that given their respective abilities and the parents’ active involvement in their daughter’s life, they will need to continue to work together.

Therefore, both parents are allocated decision-making responsibility. Parenting time [ 44 ] The Family Law Act provides that the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child. [6] After considering all of the factors examined above, I find that it is in K’s best interest to have equal access to both parents. [ 45 ] Of course, she is 12 years old and the older she gets, the more her parents will have to take her wishes and preferences into account.

However, generally speaking, it is not up to the child to choose what she should do, especially at the age she was from the time her parents separated until the case was heard. [ 46 ] Each parent must be able to make the child understand that just as she cannot refuse to go to school or to the doctor, she also cannot refuse to go to the other parent when scheduled to do so. The parent must then exercise parental authority to ensure that the child obeys. [7] [ 47 ] After taking everything into account, I allocate equal parenting time for K.P. to both parents.

Police intervention [ 48 ] In this case, the father had to ask the RCMP to intervene and resort to contempt proceedings to get the mother to comply with a court order. At the time, it was possible for the court to order police intervention under the former

section 132.1 of the Family Services Act . The Family Law Act does not contain such a provision. [ 49 ] However, pursuant to paragraph 52(4) (

h) of the Family Law Act , in a parenting order, the Court may provide for any other matter that it considers appropriate.

[50] The courts are always hesitant to allow the police to intervene in the presence of a child. In thiscase, it happened several times. The mother was even handcuffed. However, we have to acknowledge that the interventions werenecessary. Even so, we have to ask ourselves how it may have affected the child. [51] The situation has improved significantly since the RCMP last went to the mother’s home.Nevertheless, today’s decision may affect what happens next, given the change in parenting time.

In an attempt to ensure a smoothtransition, I will keep these measures in place, but for a limited time, that is, until the end of 2023. After that, the clauses in question willno longer be effective.

Conclusion [52] A.L. and M.P. are therefore allocated equal decision-making responsibility and parenting time.An order reflecting this decision will accompany it. [53] Although he did not get everything he wanted, the father has been more successful.Nevertheless, I do not believe that this is a case where costs should be awarded. [54] In closing, I would like to point out that the hearing was held in both official languages. Usually,this means that the decision would have to be rendered in both French and English at the same time.

However, given that the parties havebeen separated for almost four years and that it is in the best interests of the child that a decision be rendered as soon as possible, A.L.and M.P. have agreed that the decision be rendered in French first and that an English version be made available afterwards. May 4, 2023 ____________________ Campbellton, N.B. Larry Landry, J.C.K.B. [5] Supplementary motion record, p. 160. [7] See, for example, J.M. v. B.C., 2021 NBQB 262 , at paragraph 30.