T.M.F. v. J.D.F., 2010 ABQB 801

Court of Queen ’ s Bench of Alberta Citation: T.M.F. v. J.D.F., 2010 ABQB 801 Date: 20101214 Docket: 4801 139925 Registry: Calgary Between: T.M.F. Plaintiff (Defendant by Counterclaim) - and - J.D.F. Defendant (Plaintiff by Counterclaim) _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L. Kenny _______________________________________________________ Introduction [ 1 ] This is a bifurcated trial. The matter before me now is mobility, custody and access. The issues of child and spousal support along with the division of matrimonial property will be dealt with at a later date. Background

[ 2 ] The parties started living together in the fall of 1999. The oldest child was born in 2003 and is currently seven years of age. They married in 2004 and had another child in 2006 who is currently four years of age. The parties separated in February of 2009. The wife is currently 32 years of age and the husband is 46 years of age. [ 3 ] The acrimony between the parties since separation has been extreme. This is definitely a high conflict situation which is impacting the children.

While none of the conflict and aggression by either party is directed at the children, they cannot help but be impacted by the conflict they see between their parents. [ 4 ] The separation occurred after an alcohol fueled altercation involving the parties and a good friend at the parties’ home. There is a dispute between the parties as to what exactly happened but the end result is that the wife was pushed down in some fashion by the husband as he was angrily advancing towards his good friend. The husband believed that his wife and this good friend were involved in a relationship.

This incident was partially witnessed by the children. The wife fled the home with the children. [ 5 ] The husband was charged with assault and uttering a threat against the wife. He was originally released on conditions which included no contact with his wife and children. Those charges were eventually resolved by the husband agreeing to enter into a Peace Bond. At the same time, on the recommendation of the RCMP, the wife obtained an Emergency Protection Order to keep the husband away from her and the children.

The wife went back into the matrimonial home with the children and the husband stayed with his mother nearby. [ 6 ] Arrangements were made over the next few weeks for the husband to have supervised access to the children. This went hand in hand with an acknowledgment by the husband that he needed help. He was put on medication by his family doctor. He engaged in counseling to deal with his anger and anxiety and he agreed to attend for a risk assessment. This was a prerequisite in the mind of the wife to the husband having regular access to the children.

She was very concerned about his anger and violent outbursts and the fact that he had never been alone with the children for any extended period of time before the separation. She wanted to be sure that the children would be safe in his care. [ 7 ] The husband had supervised access to the children first with the wife’s stepmother acting as a supervisor and then later with a professional agency.

The reports from the agency were positive and so the parties moved to a regime of limited unsupervised access. [ 8 ] In April or May of 2009, the wife was worried over the presence of what she described as a trespasser on the property. The matrimonial home is on an acreage outside of the City of Calgary and relatively isolated. She called the police and the trespasser was arrested. As a result of her unease at staying in the home on her own, she left with the children to stay at her father’s place in Saskatchewan for a couple of weeks until she figured out what she was going to do.

She returned to Calgary and rented a place in the city. The husband returned to the matrimonial home where he has resided ever since. [ 9 ] In about August of 2009, the parties moved to a 50/50 regime with the children. They exchange the children at the school each Monday morning. The wife was not in favour of this arrangement right from the start as she did not think it was in the children’s best interest however she acquiesced to it on the suggestion of her then lawyer. Both parties acknowledge that the children were having trouble settling in to this regime.

This has been most acute with the oldest child. [ 10 ] In August of 2010, the wife moved to Regina, Saskatchewan with her new partner who is an orthopaedic surgeon. This is where he was able to obtain a contract for employment after having worked at various locations in Alberta usually in a locum position. When it was the wife’s week with the children at the end of August, 2010, she moved the children to Regina and then sent the husband an email telling him that she had moved the children there and would be starting their older son in school.

She also emailed the school in Alberta to tell them the same. [ 11 ] This was a surprise to the husband and he immediately called the RCMP and took steps to have the children returned to Alberta. The wife returned to Alberta with the children by the next week when it was the husband’s week to spend with the children. The regime has continued to date with the 50/50 split pending the outcome of this hearing.

Issues [ 12 ] The wife wants to be able to move to Regina with the children. She seeks sole custody of the children given the high conflict that exists between the parties. She is prepared to provide the husband regular access to the children including holidays and long weekends. She will facilitate all access by phone, email, and internet communication such as skype. In the event that the court does not allow the children to move to Regina, the wife says she will remain in Calgary with the children although she will not have employment and will have to find a place to reside.

She will continue to rely on the husband for support until she can find employment. [ 13 ] The husband seeks joint custody and a continuation of the 50/50 regime with respect to the children. If the court decides that the children need a more primary home, he would like that home to be with him with access to the wife. He says he will facilitate whatever access the court decides is appropriate. Current Circumstances

a) Conflict [ 14 ] As indicated earlier, the conflict between the parties in this matter is extreme. A great deal of trial time was spent going through emails between the parties since separation. There is a great deal of frustration on the part of both parties which clearly shows through in the communication between them. The husband still appears to harbour a great deal of anger towards the wife for leaving the relationship and this shows through in their communication. The way these parties speak to each other in emails is quite frankly appalling.

Both acknowledged at the trial that their communication with each other was disgraceful and that it needed work. [ 15 ] The wife also tape recorded the husband without his knowledge on many occasions when they had to deal with each other in person. She says she did this because her husband’s verbal abuse, controlling behavior and put-downs of her were extreme and no one would believe what her husband was really like without the tapes. He often appears polite in front of other people and so the wife is worried that others will not see the side of him she knows well.

One of the experts who gave testimony at the trial indicated that she listened to some of the taped conversations and found them nauseous. [ 16 ] An officer from the local RCMP detachment near the matrimonial home gave evidence. They have had many dealings with the family. Most of the contact has been initiated by the husband. The officer described contact with the husband as extremely angry where the husband would use foul language in his conversations with the officers. He would complain about his wife breaching orders and direct the officers to arrest her.

When the officers would contact the wife, she would provide a reasonable explanation and speak with the officers in a polite and cordial fashion. The officer considered this to be a high risk file and the decision was made to have regular patrols go by the matrimonial home when the wife was residing there with the children. [ 17 ] In addition to the emails and taped conversations, there is the endless litigation in this matter. There have been many motions and affidavits filed along with many court applications. Some of these applications have ended up by consent at the last minute.

Nothing is done on this file by agreement up front. No request by either party is considered and responded to without either the threat of an application or an actual Notice of Motion being filed. While counsel play a

part in this endless litigation, the positions taken by counsel are on their client’s instructions. This conflict continues with outstanding applications and future applications contemplated as the parties move to the second part of this trial. Employment [ 18 ] The husband was originally trained as a pilot and briefly was a member of the Canadian Air Force until he decided that it was not for him. He completed his flight training and then flew small planes in the north for a while. In 1995 be began a real estate career eventually moving into land development in which he was very successful.

Immediately after the altercation between the parties in February of 2009, the husband’s business partner ended their partnership. The husband has not worked since. His evidence at trial was that he chose not to look for work until this matter was concluded as the litigation was all consuming and between that and his children, he did not have time to work. He has an idea of what he wants to do and a partner he wishes to do business with but will not pursue those options until these matters are concluded.

[ 19 ] The wife was very young when the parties met. She had some college education and had worked various jobs before taking a job with the husband’s development business which is how they met. She earned her real estate license and was earning a substantial income before the birth of their first child. It was agreed after that, that she would stay at home to look after the children. The wife eventually wanted to get back into the work force and earn her own income. The parties started an alternative fuels business which the wife was responsible for. This business failed after the separation.

The wife then returned to obtain her real estate license which she had to do all over again given the length of time she was out of the business. She eventually found full time employment in Regina in the fall of this year. The continuation of that employment may be affected by the outcome of these proceedings. Financial Support [ 20 ] The wife id not receive regular support from the husband for herself and the children after the separation. The husband has however provided to her lump sum uncharacterized payments after court applications were brought.

He expected that the wife would earn an income from the alternative fuel company until it went under. Finally a court order was made in December of 2009 which provided to the wife a payment of $5000 per month which has continued to date. The husband applied in the summer of 2010 to reduce the payment to the wife to $428 per month on the basis that the parties were sharing custody of the children and that he was not working and could not afford to pay these sums any more. He was pushing the wife to find a job.

The wife naturally panicked as the monthly payments made to her each month were what she and the children lived on. Expert Reports

a) Risk Assessment [ 21 ] The older child, age 6 at the time, was displaying concerning behavior as a result of the high conflict separation of his parents. This included high anxiety, lying behaviors and a suicidal comment. The parties engaged the help of Ms. Ragan, a registered psychologist, to conduct a risk assessment and provide strategies to the parents that would help their son. [ 22 ] In her report, Ms. Ragan indicates that the child has been so negatively impacted by the conflict that he may be developing his own fantasy world to deal with the separation.

He has a high level of anxiety for his age and development and as a highly sensitive child, is significantly impacted by changes in his environment and conflict between his parents. He is suffering from serious loyalty conflicts. Ms. Ragan opines that if the conflict does not decrease, it will impact the child’s ability to function at home and school. He is struggling with a high level of sadness, anger and aggression. [ 23 ] Ms Ragan recommended the parents develop a custody access

schedule that was predicable and which involved minimal transitions between homes given the child’s high level of separation anxiety. She also recommended a bilateral assessment and ongoing counseling especially for the parents to help with communication, healthy co-parenting strategies, boundaries and decreasing the conflict. She also indicated the parties needed to learn to speak about the other parent to the children in a neutral and supportive manner.

She recommended further counseling for the child so he could learn how to cope with the situation. [ 24 ] The assessment took place between November of 2009 and January 15 of 2010. The report was completed February 4, 2010. Despite almost a year passing since this report, the parents did not follow up on the recommendations in the report specifically for counseling for themselves and for their son. The conflict continues unabated.

b) Bilateral Assessment [ 25 ] A bilateral assessment was ordered by the case management judge in late September 2010 after the wife returned from Saskatchewan having taken the children there in late August 2010. The assessment was to deal with the issue of mobility. [ 26 ] Ms Sheldon completed the assessment. She conducted standardized personality tests of both parties and their current partners. She observed the parties with the children, contacted third parties and reviewed all of the relevant court documents and other documents

given to her by the parties. [ 27 ] In reviewing Ms Sheldon’s report and hearing her evidence, she is definitely concerned about the level of conflict involved in this family. She found that both parents love the children and the children are attached and love both parents. What is causing the problems is the divided lives the children are living by switching homes every week and the conflict between the parents. She states that for 50/50 parenting to work, communication must be high, conflict low and geographical proximity between homes close.

The children need more peaceful, calm and stable interaction between their parents. That is clearly not the case in this family and is what is creating the difficulty for the children. [ 28 ] Ms Sheldon reviewed a number of risk factors identified in the literature on the issue of relocation and how those would affect this family and this proposed move by the wife.

a) Age of the children- given their ages, it would be difficult for the children to hold on to their relationship with the non residential parent without a great deal of effort by both parents to ensure this bond was not lost. Ms Sheldon is concerned that both parents do not appreciate the effect their lack of judgment is having on the children. This is particularly concerning given the very clear recommendations delivered by Ms Ragan which the parties never followed through with.

b) Geographical distance and travel time - This is clearly a concern as it is eight or nine hours driving time between Calgary and Regina or a one and a half hour plane ride. This would create difficulties for the non residential parent and a real effort would have to be made to keep in touch with the children on a regular basis in person and by other means.

c) Psychological stability of the relocating parent and the parenting effectiveness of both parents. The wife’s profile did not identify any significant pathology or disturbance of character. The husband profile showed he is experiencing anxiety and prone to anger outbursts. His nature seems to be one of sadness, anxiety and frustration which he expresses in anger and disrespectful words. Ms Sheldon saw these tensions and outbursts as a definite risk and concern.

She notes that the husband had been taking some counseling which seems to be helping him understand his issues and she encouraged him to continue with this. She found both parents were effective in managing the everyday needs of the children and looking after their health and well-being.

d) The children and any particular needs- Ms Ragan in her risk assessment identified the high level of risk the older child was at yet none of her recommendations were followed to try and alleviate this risk. The conflict has only gotten worse and therefore the risk to the child intensified. Ms Sheldon found that the child did have a positive connection to his community which helped moderate this risk including his love of school. She found that school is the only stability the child has where he is protected from the tensions in the family.

A decrease in the conflict would make a major difference in the children’s experiences. Until the conflict is better managed, this was considered a risk to the move.

e) Involvement by the non residential parent - the parents are both very involved with the children and the loss of involvement from either parent did not seem to be an issue with any relocation.

f) Gate-keeping and support of the other parent-child relationship- Ms Sheldon found this to be a primary problem in this family. She indicated that children can manage distance between parents but only with a great deal of respect for the nonresidential parent. Her main concern was the fact that the wife chose to move with the children to Regina without what appeared to be a lot of thought about how that would impact the children’s relationship with their father. The wife told the children they would have their home with her in Regina.

It is a significant risk that without due diligence and active follow through by the wife, she would continue to make these unilateral decisions without regard to the importance of the father.

g) Interparental conflict and domestic violence- the considerable conflict in this family seems to keep the parties emotionally attached to each other. The wife felt the move would reduce the conflict which is likely to be the case however if the nonresidential party has difficulty getting access, this can only inflame the conflict.

h) Recentness of the marital separation - although the parties have been separated for almost two years, the degree of conflict and the emotions of both parties is still very strong.

[ 29 ] The risk factors relating to a move or no move are almost equally divided but with a concern by the assessor about the wife’s ability to facilitate and promote the relationship between the children and their father. The assessor saw risks either way - whether the children stay with their dad or move with their mom. What would be best for the children would be a reduction in conflict as the parents and children are all very attached to each other. [ 30 ] No matter what the court decides, Ms Sheldon recommended a change from the 50/50 parenting.

She says this arrangement is not working for the children at this time. They need a primary home. She recommends that the children have their primary residence with their mother with perhaps a 9/5 split if the parties live in the same geographical area. [ 31 ] As to the move, she says that most children adjust well to a move whether in intact families or not. The harm is created when the relationship between the children and the non residential party is not fostered.

As indicated earlier, Ms Sheldon is concerned that the wife does not appreciate the father child relationship and will not foster that relationship especially from a distance. Absent this, she does not think the move would pose such a risk. [ 32 ] In

summary, Ms Sheldon thinks there are risks for the children with either parent. Neither really appreciates the toll the conflict is taking on the children. She sees a slight advantage to the husband only because he has been willing to engage in counseling in the past and seems to be working towards change. He also lives in the matrimonial home which is an environment that the children are familiar with along with the school nearby. Having said that, the assessor has concerns on both sides unless the parents can change their behavior. [ 33 ] Ideally the parties would live in the same area.

That is not the case here. The wife has relocated to Regina. She has found employment. The cost of living is less there than in the Calgary area. She resides with her common law partner who the children know. She has found a residence which is similar to the residence of the children outside of Calgary and near a school. [ 34 ] The father lives in the matrimonial home. The issue of matrimonial property is still to be decided and so it is unknown whether he will remain in that residence. The children go to school nearby.

The husband is unemployed and it appears that will not change until these matters are concluded. There are extended family members nearby that the children see. [ 35 ] Ms Sheldon has indicated in her report that it would be good for the children to stay in this same environment at least until they finish this school year. They would live primarily with their mother and that would give them some stability while the parents work on their issues.

She believes that at the end of the school year, a better evaluation of attitudes and change may be possible assuming the parents use this time to work out their differences and work on their communication. It will give all some time to adjust and work to mitigate any harm of a move should one occur in the future. She suggests a parenting coordinator and the parties both agree this is a good idea. This individual can assist in implementing any parenting plan.

Any contact between the non residential parent and the children, should they live in different Provinces should take place by weekly telephone calls and Skype. There would also need to be regular personal contact with the children. The Law [ 36 ] The leading decision in the area of mobility is Gordon v. Goertz, 1996 CanLII 191 (SCC) , [1996] 2 S.C.R. 27 (S.C.C.). First, the parent applying for a change to the existing parenting arrangement must demonstrate that there has been a material change in circumstances affecting the child. The parties here agree that the contemplated move of the mother meets this test.

The Court must then embark on a fresh inquiry into the best interests of the children. There is no presumption in favour of the custodial parent. The status quo before the move is one factor to consider but one must also look at the effect on the children if the custodial parent moves compared to the effect on them of no move. [ 37 ] The factors in Gordon to consider are as follows: 1) The existing custody arrangement and relationship between the child and the custodial parent and the access parent.

[ 38 ] In this case, the mother had been the primary care giver to the children since birth. She arranged all of their activities and looked after their day to day needs as well as all appointments with school, doctors, dentists etc. The father had never looked after the children on his own before the separation for any time other than a few hours. [ 39 ] After the separation, the father had limited contact with the children because of the court orders. That was eventually relaxed and as of August 2009, the parties have had 50/50 shared custody.

Both parents are very bonded to the children as the children are to them. The conflict between the parents however has created a great deal of stress for the children. The current arrangement is not working for the children no matter where they live and will need to be changed. 2) The desirability of maximizing contact between the child and both parents. [ 40 ] This would ideally work best if the parents were in the same location. There are concerns about the wife facilitating generous access to the father particularly given her precipitous move to Regina with the children without telling the father.

The wife realizes this was a bad decision and regrets her actions.

She says she was frustrated and anxious about her future prospects as the husband had applied to the court to drastically lower any payments to her for support and she had to make some decisions that would best benefit her and the children. [ 41 ] The father has not had to make any significant decisions that affect his life as he has all of the matrimonial property other than the sums he has advanced to the wife, he lives in the matrimonial home and he has the resources so that he does not have to work at the present time. [ 42 ] We have no indication about what the father would do with respect to access if he had primary care of the children as he has not been in that position.

Any issues involving the children have been highly conflictual to date. 3) The views of the children. [ 43 ] The oldest child has made it clear that he wants to live with his mother. He thinks she takes better care of him and his sister. He loves his dad very much and would miss him greatly but his choice is to live primarily with his mom.

In fact, he told the assessor that he wanted the judge to know that he wants to live with his mom. 4) The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child. [ 44 ] In this case, the mother has updated her real estate qualifications and has found a place to live and a job in Regina. This is important for her ability to care for the children. She advises that the cost of living is lower in Regina and she can afford to make it on her own if need be.

The father is not working and wishes to reduce the money he pays to the wife from $5000 per month to $428 a month. This would leave the wife in a position where she is renting accommodation, has no job yet if she stays in Calgary, could not afford to live in proximity to the matrimonial home because of cost and would have to care for the children and herself with extremely limited resources. 5) Disruption to the child of a change in custody. [ 45 ] If the children were not allowed to move, the assessor does not recommend that they remain in the primary care of their father.

The change would be to the primary care of their mother which is seen as beneficial to them. The wife has indicated she would not move if the children could not go with her. 6) Disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[ 46 ] Ms Sheldon indicated that the school is really the haven for the children now as it is their only stability and place where they can get away from the conflict between their parents. They also spend every other week with their father in the home they have grown up in. They know the area and they have some extended family nearby which they see from time to time.

Decision [ 47 ] I must decide what is in the best interests of the children in all of the circumstances including what has been happening as well as what is proposed. [ 48 ] I was very impressed with the evidence and the reports provided by both Ms Ragan and Ms Sheldon. They were well prepared and they gave their evidence in a direct and forthright manner. Their comments were of great assistance to me. [ 49 ] After having listened to all of the evidence I find the following facts. These parties are engaged in a very high conflict relationship which shows no signs of changing in the immediate future.

The level of conflict has directly impacted the children. Their loyalties are torn. They are having trouble with the constant movement back and forth between houses. They feel partially responsible for the conflict. [ 50 ] The children need a primary home, one where they spend the majority of their time. The 50/50 is not working for them. Ms Sheldon recommends that be with their mother. The children, in particular the older child want that as well. I agree with that suggestion. She is able to offer the children stability and consistency as she has in the past.

This is not to say that the father has not come a long way in stepping up to the plate to care for his children. He has gone from never having taken care of them on his own to caring for them every other week although he has arranged for his girlfriend to move in with him the weeks that he has the children to help in their care. The difficulty with the father having primary care of the children at this time however is his continued anxiety and anger. Ms Sheldon indicates this is still a concern although the father is working with a counselor to understand his issues and trying to correct them.

He is still very emotional however and this shows in his interactions with the wife both in person and by email. [ 51 ] The evidence of the RCMP officer was helpful as well. The officer and other staff members of the RCMP detachment have no interest in this matter other than doing their job. The officer's description of his office’s contact with the father over the last year or so is concerning. It is clear that there is still a lot of anger that needs attention. [ 52 ] It will be at least the spring of 2011 before the matters of property and support are dealt with between the parties.

Discussions had with counsel at the end of this hearing indicate that those matters are going to be as litigious as has this entire matter to date. The parties and their lawyers agree on nothing. More applications are contemplated on disclosure issues. With this level of animosity and litigation continuing, I see no end in the immediate future to the conflict between these parties. [ 53 ] I am satisfied that the best interests of the children are met at this time by being in the primary care of their mother. The question then is do they remain here in the Calgary area or move to Regina.

If I felt that things were going to improve over the short term so that the children would see some stability in their lives and the parties could work to a common goal, I would be inclined to leave any move until the summer as suggested by Ms. Sheldon. I simply do not see that happening. To continue to leave these children in the upheaval and conflict they have been in for the last two years is not in their best interest. They need a sense of security and stability. That will not happen over the next six months as this litigation continues.

I am satisfied that it is in the children’s best interest to move with their mother to Regina. [ 54 ] Any concern about the mother’s ability to focus on the importance of the children’s relationship with their father can be dealt with by Court order. I am going to direct very specific and generous time with the father so that in so far as is practical, the children’s bond with their father is not diminished.

If the wife fails to live up to the obligations imposed on her in this regard, the matter can be brought back to me for review. [ 55 ] The parties will have joint custody of the children with the primary care to be with the wife. The children will move over the Christmas holidays so that they may start school in Regina at the beginning of January, 2011. They will stay with their father from the start of the school break until December 28, 2010 or whatever other date the parties agree. They will then go with their mother to Regina

to prepare for the new school term. [ 56 ] The father will have the children with him for the spring break as well as the May long weekend which will include two additional school days. The parties shall agree on a division of the summer holidays by the end of May, 2011 failing which I will set those [ 57 ] The father shall also have time with the children in Regina should he choose to visit there.

There will be telephone access to the children at least twice each week when they are not with the father and the mother shall forthwith install Skype or such similar device so that the children may communicate with their father over the internet. [ 58 ] In looking at the factors set out in Gordon supra, the existing arrangement was not working, the court can and does impose conditions to ensure there is maximum contact between the father and the children, the children want to live with their mother, the mother’s reasons for moving relate directly to her ability to care for the children with employment and reduced stress and conflict for the children, and finally, although there is a disruption in removing the children from the physical environment they know well, it would not be appropriate given the above factors to require her to remain in Calgary as the primary parent with all of the uncertainty and conflict that entails.

It is not in the children’s best interests. [ 59 ] I am satisfied that this will reduce the conflict between the parties which will benefit the children. It will only work long term however as long as the wife encourages and supports the presence of the father in the lives of the children. Failure to promote this relationship will result in a review of the custody arrangements. [ 60 ] While this will take the children away from an environment they know, the stability, consistency, and decrease in conflict far outweighs that loss in the long-term.

Costs [ 61 ] Costs will be dealt with at the conclusion of the second part of this trial dealing with matrimonial property and support. Heard on the 22 nd day of November, 2010. Dated at the City of Calgary, Alberta this 14 th day of December, 2010. C.L. Kenny J.C.Q.B.A.

Appearances: Kathleen E. Wells for the Plaintiff (Defendant by Counterclaim) Bradley Y. Minuk for the Defendant (Plaintiff by Counterclaim)