Sather v. McCallum, 2011 ABQB 34

Court of Queen’s Bench of Alberta Citation: Sather v. McCallum, 2011 ABQB 34 Date: 20110126 Docket: 4803 134302 Registry: Edmonton Between: Michelle Marie Sather Applicant - and - Bonar Andrew McCallum Defendant Corrected judgment: A corrigendum was issued on February 2,2011; the corrections have been made to the text and thecorrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Sterling Sanderman _______________________________________________________ [1] Ms.

Sather, the mother of two adolescent girls, wishes to relocate from Edmonton, Alberta to Okotoks, Alberta for thepurpose of employment. Mr. McCallum, the father of the two girls resists this move and refuses to give his consent. Ms. Sather asks theCourt to grant her permission to do so. This application engages the principles of Gordon v. Goertz (SCC), [1996] 2SCR 27.

[ 2 ] Counsel concede that there is a material change in the circumstances affecting the children. Consequently, a fresh inquiry must be made into the best interests of the children having regard to all of the relevant circumstances relating to their needs and the ability of the parents to address them. This is a fact driven decision and the Court is only concerned with the best interests of the children in the particular circumstances of this case.

All of the factors that bear upon the children’s best interests have to be considered. [ 3 ] This includes the Order in existence at the time of the application, but does not recognize a presumption in favour of the custodial parent.

It is incumbent upon both parents to address the matter of best interests of the children and to lead evidence that supports their position in this regard. [ 4 ] In addition to the existing custody arrangement, it is necessary to examine the access enjoyed by the other parent and the desirability of giving the children maximum contact with each parent. [ 5 ] The views of the children cannot be ignored and the reason for the relocation by the custodial parent requires close examination.

Any significant disruption to the children and their present life experience requires consideration. [ 6 ] No one factor is necessarily ascendent over the others. The Court balances the importance of the children remaining with the custodial parent in the new location against the maintenance of full contact with the access parent and their familiar surroundings and community. The ultimate question to be decided is what is in the best interests of the children, relocating or staying, having regard to all of the relevant factors. [ 7 ] The parties were married August 13, 1994.

They ceased to co-habit in February of 2004. They were divorced in August of 2005. The two children of this marriage are girls. The eldest will celebrate her 15 th birthday in April of 2011. The youngest will celebrate her 12 th birthday in March of 2011. [ 8 ] These girls are fortunate to have two loving parents. Both are devoted to them. Both want the best for their daughters. They share joint custody of these children. Although they reside with their mother most of the time, Mr.

McCallum is an active participant in their lives and takes care of them for significant periods of time. [ 9 ] He has sought Court ordered shared parenting in the past without success, but continues to dedicate significant time and resources to his daughters’ welfare. Certainly, he has his daughters in his care for at least 30% of the time. [ 10 ] Ms. Sather has always been supportive of the relationship her daughters have with their father. The parents have structured their lives to continue to involve their daughters. After the divorce, the parents chose to reside in the same area of Edmonton.

Continuity was maintained in the lives of the girls. They were able to continue to attend the same schools, pursue the same extra curricular activities and maintain meaningful contact with their extended family in the Edmonton area. They have only lived in this city. [ 11 ] Ms. Sather is a registered nurse who has a Bachelor of Science in Nursing and a Critical Care Certificate. She has expertise in working in emergency rooms. Mr. McCallum is employed by a successful family business and has secure employment. He works in the Edmonton area. [ 12 ] Since the summer of 2009 Ms. Sather has been unemployed.

She has been looking for a nursing position, but has not been able to find one in the Edmonton area due to a freeze on hiring. She left a position with the Primary Care Network in May of 2009 without securing alternative employment. Her interest and experience is in emergency room nursing. She applied for and was accepted for employment at the High River General Hospital in November of 2010. Mr. McCallum was aware of her intentions to seek this employment. She indicated to him in the fall of 2010 that if she was successful in obtaining it she would be relocating to Okotoks, Alberta where she owns half a duplex.

Relocating to this town would allow her to commute to High River.

[ 13 ] Ms. Sather did not pick the High River-Okotoks region purely for employment. She was motivated to consider this area of the Province because Mr. McCallum had indicated to her in the past that he was considering moving to the same area of the Province. She wanted to pick a location that would allow her daughters to continue to have considerable contact with their father. [ 14 ] In an email dated August 10, 2010 Mr. McCallum informed Ms. Sather that: I will only consider agreeing to the move if Lea and I plan to relocate to the same basic area.

I don’t mean that we will want to live in the same neighborhood, but somewhere close enough to allow as much or more access to the girls as we currently have. We are more in favour of the Cochrane / Bragg Creek area, as we are planning west Calgary, Cochrane, or Canmore as potential areas to move to. I would ask you to consider the possibility of you moving down and getting established, and having the girls stay here at least till Christmas. It will most likely take that much time for Lea and I to organize a move, and it would be a more stable environment for the girls to be in here.

That way you could be in the area and get a better feel as to what schools may be more suited to their needs. I am in favour of you taking this position, and I think that it could be a very positive transition for all involved, but I want the girls needs met first, not only their wants. I think that there is a potential to make this work for all of us in a good way, for you, Marie, Naomi, Lea and myself. Lea and I are more than willing to discuss how to make this work. This may be one of the best opportunities for all of us to pursue our dreams. [ 15 ] When Ms. Sather informed Mr.

McCallum that she was going for the job interview in High River in September of 2010 he wished her well and hoped that things would work out for her. Ms. Sather’s application to move can come as no surprise to him. He has no long term plans to stay in Edmonton and has looked at property in Canmore, Alberta in the recent past for the purpose of potentially relocating there. Ms. Sather has attempted to structure her life to continue to accommodate his access to the children. She had previously contemplated moving to Vancouver, British Columbia in 2009 as Mr.

McCallum indicated that he was considering moving to Squamish, British Columbia. She does not make decisions in order to frustrate or annoy Mr. McCallum but attempts to accommodate his long range plans. Her application has to be viewed against this backdrop. [ 16 ] A pattern has developed. He indicates a desire to move away from Edmonton to an area where he can pursue his passion for the outdoors and more specifically rock climbing. Ms. Sather takes his statements seriously. She seeks employment close to where he claims he wants to move so that the relationship with his children can be maintained.

Now that she has acted in an accommodating fashion he resists the move of the children. [ 17 ] Ms. Sather has put considerable thought into her planned move. She has investigated the schools in High River and Okotoks. Both girls are in French Immersion programs in Edmonton. Those programs are available in both High River and Okotoks. As indicated earlier she has a residence available to her in Okotoks.

Her daughters have travelled with her to Okotoks to examine their potential new home. [ 18 ] There is no doubt that the girls would be giving up considerable benefits that they have enjoyed in Edmonton in relation to extended family, friends, schooling and stability if they were to relocate. They are old enough to make their wishes known. It is important to examine their attitude in giving up the positives of a known environment for the unknown adventure of relocating to Okotoks.

Fortunately, they have had a voice in these proceedings. [ 19 ] Consistent with their desire to see that their children’s best interests are addressed, the parents have had counsel appointed for their daughters in relation to this application. Ms. Hardin saw the girls on two separate occasions. They were brought to those meetings by each parent on one occasion. She has provided a report to the Court and appeared on the application initiated by Ms. Sather. Ms.

Hardin, after having interviewed the girls, sought the input of a child psychologist. [ 20 ] Unfortunately, all too often, the quarrel between the parents brings tremendous unhappiness to the lives of the children. This statement is applicable to this case. Both parents have involved the children in the litigation and have attempted to influence their thought process. This has created a high level of stress for both of these girls. Sadness has entered their lives. This emotion should not be present but is inescapable having regard to their unwanted involvement in the dispute.

Such pressures should not be placed upon the children of any marriage.

[ 21 ] Regardless of the decision of the Court, the children will be distressed. They don’t want to be involved but have become more closely aligned with their mother and have adopted her position. They wish to remain in her care and relocate with her to Okotoks, Alberta. Undoubtedly, both are underestimating the changes in their lives that a move will bring. Although they care for their father dearly and will miss the amount of time they are able to spend with him, their wishes are clear. They have decided they would prefer the move to Okotoks with their mother rather than living without her.

In this case, this is a compelling factor. Ms. Sather is granted permission to relocate to Okotoks, Alberta with her two daughters upon the completion of the semester that is scheduled to end January 31, 2011. [ 22 ] Mr. McCallum should be granted as much access as possible. His recreational activities in the past have taken him from the City of Edmonton to the mountains every second week-end from April to October. He can certainly make the same sort of commitment to maintaining a relationship with his daughters. He shall have access every second week-end and one half of the spring and summer breaks from school.

Any other access that can be provided to him by Ms. Sather is recommended. He should also be able to maintain contact with his daughters through reasonable telephone and internet access. [ 23 ] It is imperative that the distress being felt by the girls be relieved in some fashion. Ms. Sather will insure that they receive the appropriate psychological counselling to deal with the trauma they experience from this dispute and to address any emotional difficulties that may arise from the relocation. The cost of the counselling will be divided proportionately between the parents based upon their incomes. [ 24 ] Mr.

McCallum asked to have this move reassessed at the end of the school term in June. I decline to order such an automatic review. Traumatization of these two girls is to be avoided at all costs. Having regard to Mr. McCallum’s stated intention to relocate from Edmonton at some time in the near future, it would not be wise to embrace a scheme that encourages periodic reviews. If Mr. McCallum relocates to the Calgary/Cochrane/Canmore area as he has intimated in the past, he would be in a position to resume the much more regular contact he has enjoyed in the past. Due to the uncertainty of Mr.

McCallum’s future plans, it is advisable to proceed with caution. [ 25 ] Ms. Sather is entitled to her costs. Heard on the 19 th day of January, 2011. Dated at the City of Edmonton, Alberta this 26 th day of January, 2011. Sterling Sanderman J.C.Q.B.A. Appearances: Michael L. Pollock for the Applicant Laura H. Bruyer

for the Defendant Zelma Hardin for the Children _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice Sterling Sanderman _______________________________________________________ Zelma Hardin has been added to Page: 6 as counsel for the Children.