Dimmock v. Featherstone, 2010 ABQB 773

Court of Queen ’ s Bench of Alberta Citation: Dimmock v. Featherstone, 2010 ABQB 773 Date: 20101213 Docket: FL03 27071 Registry: Edmonton Between: Holly Dimmock Applicant - and - Benjamin Featherstone Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Prompted by the father’s move from Leduc to Round Hill, a small community 70 kilometers to the East of Leduc, Ms. Dimmock, the mother of children aged 7 and 4, asks the court to order that the primary residence of the children will henceforth be with her in Leduc, and that access to the children’s father will be on alternate week-ends and as agreed between the parents. Ms. Dimmock acknowledges that her main concern about the children’s best interests is not the move to a new community, but the degree of consanguinity between their father and his new partner. Mr.

Featherstone responds that he has had the primary care of the children since the parties’ separation, that the move to Roundhill will not materially affect the quality of parenting which the children’s mother had prior to the move, and that the mother’s views concerning his new relationship are irrelevant. [ 2 ] On this chambers application, the court will not make a final parenting order. Rather, the court makes an explicitly interlocutory order. That means that, if the mother wishes to have a trial on what parenting arrangement is in the children’s best

interests, she is entitled to do so without first proving a material change of circumstance from the circumstances in effect at the time of this application. [ 3 ] On an interlocutory basis, given the age of the children, the primary caregiving responsibility of the father, the relatively short distance between Leduc and Round Hill, and the fact that the mother’s parenting will not be materially affected, the children’s best interests will be best served by maintaining their primary residence with the father at Round Hill: Elliott . [ 4 ] The mother has not proved that consanguinity between the children’s father and his new partner negatively affect the parties’ children.

Concerns relating to consanguinity are potentially more immediately relevant to the father and his new partner and any children they may have together than to the parties’ children: Preston . Any potential harm to the parties’ children arising from the consanguineous relationship between their father and his new partner would have to be explored in a full trial. Cases and authority cited [ 5 ] By the court: Elliott v Elliott 2010 ONSC 4780 , [2010] O.J. No. 4092 ; Preston v Chow [2007] M.J. No. 484 . 1.

Background [ 6 ] The parties, who are the parents of two children, a 7 year old boy and a 4 year old girl, have been separated since 2008. All members of the family have been living in Leduc since the separation. [ 7 ] Mr. Featherstone advised Ms. Dimmock that he would be moving from Leduc to Round Hill, approximately 70 kms to the east of Leduc, while continuing his employment at the airport which is located immediately west of Leduc. He actually moved approximately one month earlier than he had originally told Ms.

Dimmock; he says that the earlier move was prompted by the news that mould had infected the premises in which he and the children were living in Leduc. [ 8 ] Although there is some dispute between the parties in emphasis, Ms. Dimmock agrees that Mr. Featherstone has been the primary parent of these children; she states that this resulted from the father’s controlling tactics, but she does not dispute that Mr. Featherstone was the primary parent. [ 9 ] Ms. Dimmock also agrees that, initially, she did not object to her children’s contact with Mr.

Featherstone’s new partner; her objection arose only when she learned that Mr. Featherstone and his new partner have a sexual consanguineous relationship. 2. Interlocutory versus permanent parenting orders [ 10 ] The differences between interlocutory and permanent parenting orders are subtle; the same test applies in each case, i.e. what is in the child’s best interests, and even a “permanent” parenting order can, like an interlocutory order, be revisited if there has been a material change of circumstance.

It may be that the only difference between an interlocutory order and a “permanent” one is that in an order which is explicitly interlocutory, an applicant party does not have to prove a material change of circumstance from the last order in order to be entitled to have a parenting trial. [ 11 ] The jurisprudence favouring the maintenance of a child’s parenting status quo on an interlocutory basis unless there is evidence of danger to the child may not have survived the emphasis on children’s best interests, even though it may still be appropriate when considering the applicant parent’s position to determine whether an interlocutory change in a child’s routine will be in a child’s best interest. [ 12 ] The major difference between an interlocutory and a permanent parenting order may therefore be procedural in the sense that

an interlocutory decision is based on what is admittedly a narrow base of evidence whereas a permanent order is based on all the relevant and admissible evidence which either party chooses to place before the court. Once an opportunity has been given to fully explore the parenting dispute, there should be no re-visiting of those issues unless there is a material change of circumstance. [ 13 ] Here, the mother has not, in the limited evidence submitted, provided any evidentiary support for the core of her objection to the proposed new circumstances of the children.

Therefore, the court will only make an interlocutory order. This allows the mother the opportunity, should she wish to pursue it, to place evidence of the children’s best interests before the court in a trial without proving a material change of circumstance from the circumstances which are considered on this application. 3.

Are the children’s best interests negatively affected by a move from Leduc to Roundhill? [ 14 ] The mother’s application to change primary parenting status from the father to herself is denied: she has not proved that this change in circumstance on an interlocutory basis is in the children’s best interests. [ 15 ] There are two, intertwined, aspects to the mother’s application.

On the one hand, she wants to go from an access to a primary parent and, on the other, she wants to prevent the move from Leduc to Roundhill. [ 16 ] Dealing with the mobility issue first, and using the test developed by the Supreme Court of Canada in Gordon , as outlined in Elliott , the court observes that: - the current custody arrangement is that the father is the primary care-giver and the relationship between the father and his children remains good; - the current access arrangement is that the mother has access on a generous basis and the relationship between the mother and her children remains good; - the desirability of maximizing contact between the children and both parents has been pursued under the current arrangement where the mother has essentially had as much parenting time as she wished to exercise; - the children are too young to have expressed views on the issue; - this is not one of the exceptional situations where the father’s reasons for moving are relevant; - there will be no access disruption to the children from the move from Leduc to Roundhill.

The mother can continue to exercise the same amount of access as she had prior to the move; - there is no material disruption to the children consequent on removal. The older child will change schools, but he is in an early grade and there is no evidence that he is a special needs child who requires stability. The father has indicated that he will continue to involve his children in extracurricular activities, including activities such as hockey in Leduc.

Because of the relatively small distances involved, there will be no material disruption in the children’s contact with extended family. [ 17 ] Dealing with the parenting change next, Ms. Dimmock has not proved that, on an interlocutory basis, it is against the children’s best interests to move from Leduc to Roundhill. The mobility issues have been discussed, above. Ms. Dimmock acknowledges that her real objection to the move to Roundhill is her objection to the consanguineous sexual relationship between Mr. Featherstone and his new partner.

The court may be able to take judicial notice of the fact that a consanguineous relationship may be detrimental to the health of any children that Mr. Featherstone and his new partner would conceive together: Preston . But that does not directly affect the parties’ children. Ms. Dimmock’s personal views of the father’s new partner or the appropriateness of their relationship are not, of course, relevant to the children’s best interests. However, if Ms.

Dimmock had evidence that their father’s new relationship was not in the children’s best interests, she would be entitled to put that evidence forward in a parenting trial dealing with that issue. 4. Costs [ 18 ] If the parties are not agreed on costs, I can be spoken to within 30 days of the release of this decision.

Heard on the 2 nd day of December, 2010. Dated at the City of Edmonton, Alberta this 10 th day of December, 2010. J.B. Veit J.C.Q.B.A. Appearances: Laurie J. Tymchuk, Pahl Howard Rowland LLP, For Ms. Dimmock Robert J. Tropak, Attia Reeves Tensfeldt Snow, For Mr. Featherstone