C.G.R. v. S.D.W., 2011 ABQB 547

Court of Queen ’ s Bench of Alberta Citation: C.G.R. v. S.D.W., 2011 ABQB 547 Date: 20110912 Docket: 4813 004153 Registry: Fort McMurray Between: C. G. R. Applicant (Plaintiff) - and - S. D. W. Respondent (Defendant) Restriction on Publication: By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. See the Family Law Act, s. 100. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice P.M. Clark _______________________________________________________ I.

Introduction [ 1 ] The issues before me relate to custody and access, specifically whether it is in the best interests of two young children to permit their relocation from their hometown of Fort McMurray, Alberta, to Edmonton, Alberta. A further issue is whether the Applicant is entitled to retroactive child support for the period of September 2010 to the present. II. Background

[ 2 ] The law in relation to the issues of mobility, custody and child support is relatively well settled. The facts of this case, however, illustrate the difficulty with which the court is faced when navigating the various family arrangements which arise upon the breakdown of a marriage, especially in child custody cases involving mobility.

As the rules governing relocation and mobility typically defy bright-line application and turn upon the facts of each case, it is appropriate under the circumstances to canvass in some detail the events giving rise to this litigation. [ 3 ] The Applicant and the Respondent were married November 15, 2003 in the City of Fort McMurray. They separated on May 15, 2006 and were granted a Divorce Judgment on January 4, 2008. A Divorce Certificate was granted on February 4 th , 2008.

Two children were born of their marriage, aged five and seven at the time of trial. [ 4 ] At the time the Divorce Judgment was granted by Germaine, J. on January 4, 2008, both parties were residing in Fort McMurray, Alberta.

Both parties were employed in the oil sands project, and were working shifts. [ 5 ] Minutes of Settlement entered by the parties on November 16, 2007, prior to the divorce, entitled both the Applicant and the Respondent to equal portions of time with the children. [ 6 ] The terms of Germaine J.’s Divorce Judgment, as they pertained to the matters of custody and access, mirrored the Minutes of Settlement and similarly granted the parties joint shared custody. Under this arrangement, each party had custody of the children of the marriage 50 percent of the time, on alternating weeks.

Both parties were also entitled to generous access to the children when they were with the other parent. [ 7 ] Several months after the issuance of the Divorce Order, the Applicant sought by way of a motion filed on November 9, 2009, to vary the custody and access arrangements ordered by Germaine J. [ 8 ] The motion was filed by the Applicant following alleged inappropriate conduct by the Respondent while the children were in his custody outside of Fort McMurray.

The motion sought to restrict the Respondent’s overnight access to the children, to require supervised access at all times and to limit his ability to remove the children from Fort McMurray. [ 9 ] Justice Bensler heard the application on November 26, 2009 and ordered that the Respondent not be permitted to take the children on trips outside of Fort McMurray without further court order. She dismissed the Applicant’s other applications to curtail overnight access and to require that the Respondent’s access be supervised. [ 10 ] The Respondent filed a motion to vary Justice Bensler’s Order.

However, he failed to attend the July court hearing pertaining to his motion and it was subsequently ordered by Justice Neilsen on July 14, 2009 that the Respondent’s motion be dismissed. The Applicant’s submissions at the hearing before Justice Neilsen contained further complaints with respect to the manner in which the Respondent was dealing with the children while they were in his custody.

Consequently, Justice Neilsen further ordered that the Respondent’s access be supervised and that he no longer have overnight access to the children. [ 11 ] On August 25, 2010, Martin J. granted the Applicant’s motion seeking permission to relocate with the children to Edmonton on a temporary, non-biased, interim, without prejudice basis. [ 12 ] The Applicant has lived in Edmonton with the two children of the marriage since permission to relocate was granted, along with her new fiancé, with whom she has one child and is pregnant with a second. [ 13 ] The matters in issue in this judgment were heard on March 16, 2011.

III. Issues [14] The Applicant seeks: 1. Retroactive child support from September 2010 (the first full month after Martin, J.’s order granting the Applicant temporary custody,to the present); and 2. Permission to relocate from Fort McMurray to Edmonton with the children of the marriage, with generous access to the Respondent. IV. Analysis A. Mobility of the Children [15] Subsections 16(6) and (8) of the Divorce Act give the court the power to grant or vary custody or access based solely on thebest interests of the children: 16. Custody Orders Order for Custody

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting thecustody of or the access to, any or all children of the marriage. ... Terms and conditions

(6) The court may make an order under this

section for a definite or indefinite period or until the happening of a specified event and mayimpose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. ... Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage asdetermined by reference to the condition, means, needs and other circumstances of the child. [16] The determination of whether the Applicant is to be granted an order allowing her to relocate to Edmonton with the childrendepends upon what is in the best interests of the children. The leading case on mobility rights and the proposed relocation of children isGordon v. Goertz, (SCC), [1996] 2 SCR 27,134 DLR (4th) 321.

McLachlin J., as she then was, writing for themajority, held that the determining factor is ultimately the best interests of the children. To assist in the determination of the bestinterests of the children, she constructed the following framework, at para. 49: 1.The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child. 2.

If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4.The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled

to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia : (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) 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; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [ 17 ] The essence of the custodial test was described by McLachlin J. at para 50 of Gordon : In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? 1.

Material Change [ 18 ] In Gordon , the Supreme Court set forth a two-step process when dealing with mobility issues. The initial step is to decide whether or not the move would constitute a material change in circumstances.

If it is determined that the proposed relocation will constitute a material change, the court is to then examine the best interests of the children in light of the prospective change. [ 19 ] I am satisfied that the proposed relocation of the children from Fort McMurray to Edmonton, the consequent disruption to the children’s lives, as well as the diminution of the Respondent’s contact with the children constitutes a material change in circumstances as per the principles governing mobility outlined in Gordon . [ 20 ] This preliminary threshold having been met, a fresh inquiry into the best interests of the children must be made, having regard to all the relevant circumstances relating to the children’s needs.

2. The Existing Custody Arrangement [ 21 ] Under the previously existing custody arrangements, the parties shared custody and control over the children, until a series of applications were brought to vary the custody arrangements, beginning November 26, 2009. The custody arrangements were most significantly altered on August 25, 2010, when the Applicant was granted permission to relocate with the children to Edmonton on a temporary, non-biased, interim, without prejudice basis. [ 22 ] Prior to Martin, J.’s order granted on August 25 th 2010, both parents were heavily involved in the children’s lives.

Affidavit evidence provided by the Respondent spoke to his dedication to his children and the time he spends with them while they are in his custody, taking them to visit family, camping, the park, cycling, and visiting them at school. He also provided a series of letters from family, day-care providers and school officials attesting to his ability as a parent. [ 23 ] The Applicant has also provided evidence of caring for the children, enrolling them in sports and extra-curricular activities, and taking primary initiative in respect of scheduling and appointments.

According to the Applicant’s mother, the children are also very close with the Applicant’s new fiancé, who has been involved in coaching their sports teams, helping with their extracurricular projects and reading to their class at school. [ 24 ] Under the shared custody arrangement, both parents exercised decision-making rights and the children spent roughly equal amounts of time with each parent. 3. Maximum Contact [ 25 ] Maximum contact with each parent is deemed to be in the best interests of the children.

As such, a relocation, no matter how valid the reasons, should not contravene subsection 16(10) of the Divorce Act , or the “maximum contact principle”.

Subsection 16(10) requires the court to give effect to the principle that a child should have as much contact with each parent as is consistent with the child’s best interests: Maximum contact 16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [ 26 ] Given the five hour commute between Edmonton and Fort McMurray on the heavily-trafficked, single-lane highway which connects the two cities, frequent visits are not realistic.

Consequently, removing the children from their hometown of Fort McMurray will significantly alter the amount and nature of the time the children spend with the Respondent. Conversely, if the Applicant continues to live in Edmonton and custody is granted to the Respondent, the children’s relationship with the Applicant will similarly be adversely affected. [ 27 ] The only possible way to preserve the bond the children have developed with both the Applicant and the Respondent, and to promote the maximum contact principle, is if both parties were to reside in the same jurisdiction.

However, as the Court of Appeal of Alberta has stated in McPhail v. Karasek , 2006 ABCA 238 , 409 AR 170, at paras. 44 and 45 : (...) Canadians are mobile and the courts are not the arbiters of the reasonableness of every decision a custodial parent makes. Custodial parents cannot be held hostage to the place the access parent lives. Certainly access parents are not.

Canadians have the right to choose to separate and divorce, and they have the right to relocate, and it is not for the courts to determine whether they like or agree with the reason for separating or moving. Custodial parents should not be faced with a potential loss of custody simply because they choose to move. Nor should a decision to move be seen automatically as a negative factor in the ability to parent. [ 28 ] In this case, I am faced with the dilemma of determining which of two worthy custodial parents should retain custody of the children.

No submissions by either party have been made as to which is more likely to favour contact with the other parent. As such, I am not able to make a clear finding in respect of the maximum contact principle. 4. The Views of the Children [ 29 ] The wishes of the children are another factor to consider in determining the best interests of the children and should be taken into consideration in custody disputes, provided the children are old enough and mature enough to express a reasoned preference. Given the children’s young ages, their preferences are not a factor I consider relevant in the present case.

Further, no submissions have been made in respect of the children’s wishes. 5. The Custodial Parent’s Reasons for Moving [ 30 ] As the Supreme Court indicated in Gordon , only in exceptional circumstances will the custodial parent’s reasons for moving be considered when determining the best interests of the child.

In order to be considered, the circumstances must be such that the reasons for moving are relevant to that parent’s ability to meet the needs of the child: Gordon at paras 22-23, 49 . [ 31 ] The Applicant’s stated reasons for moving are because of her shift work in Fort McMurray, which she indicated in the November 29, 2010 Questioning on Affidavits was not a good shift for a mother. She submits that in relocating to Edmonton, she will be able to provide better care for the children, by either obtaining a better

schedule or by staying at home while her fiancé works. [ 32 ] While the reason for the Applicant’s move to Edmonton is relevant only with respect to how it deals with the her ability to meet the children’s needs, I am concerned the Applicant has not exhaustively canvassed all the options for remaining in Fort McMurray, such as finding a better shift or seeking out other opportunities that might in fact be available for her with her credentials, her experience and her work background in the trades.

Also, if it is her intention to stay at home with the children in Edmonton, what prevents her from staying home with the children in Fort McMurray? 6. Disruption to the Children of a Change in Custody [ 33 ] A permanent relocation to Edmonton will undoubtedly disrupt the children’s lives. The change in circumstances from seeing both parents on a regular basis and benefiting equally from the love and care that each can provide, as well as the quality time that was spent with both their mother and father, will not be in the best interests of the children.

The children are well-bonded, psychologically and emotionally, with both parents. [ 34 ] In support of his claim for custody, the Respondent relies on Turic v. Hinton , 2002 ABQB 208 , 313 AR 358, a decision involving a number of issues relating to the parenting of a 20 month-old child, including mobility, custody and access. In that case, the court determined it was not in the best interests of the child to relocate from Calgary to Edmonton, given the continued and very strong relationship between the child and the father.

The court arrived at this decision even though the proposed relocation would allow the mother to earn a good living in her chosen profession while working from home and possibly providing a better level of care because she would have been a stay at home mother. [ 35 ] The Respondent submits that if the court in Turic v. Hinton would not permit the mother to relocate only three hours away from Calgary to Edmonton, the Court should not permit the substantially farther relocation from Fort McMurray to Edmonton.

[ 36 ] This submission is not overwhelmingly convincing and has little sway on my decision, as the work and economic situations of the respective parties are not identical in the two cases. I reiterate that this area of the law is highly fact-specific.

However, I can appreciate that if the disruption of relocating to a new city three hours away was found not to be in the best interests of a child, it may also not be in the best interests of a five and seven-year old child to undergo the disruption of relocating to a new city five hours away. [ 37 ] A further consideration with regard to a change in custody is the relationship between a custodial parent and a child. Gordon clearly states that there is no presumption in favour of one parent being allowed to relocate with the children: paras. 47-48. In the case of C.S. v.

E.L. , 2010 ABQB 285 , 31 Alta LR (5th) 364, Sullivan J. conducts an overview of the case law in Alberta as it relates to the relationship between a custodial parent and child in cases of mobility and relocation. At para. 25, he discusses the initial treatment of MacPhail , where the Court of Appeal vacated the trial judge’s decision for failing to accord sufficient weight to the impact of separating the child from its custodial parent, effectively reducing that parent to an access parent, and placing undue emphasis on the mother’s reasons for moving.

Sullivan J. notes that in early treatment of the case, MacPhail appeared to create a presumption in favour of the custodial parent: see Heikel v. Heikel , 2007 ABQB 378 , 44 RFL (6th) 102; R.L. v. M.P. , 2008 ABQB 49 , AJ No 182. [ 38 ] More recent decisions have not interpreted MacPhail as creating such a presumption. As noted by Sullivan J. in C.S. v. E.L. at para 30 : In M.N.M. v.

J.E.M. , 2009 ABQB 607 , Madam Justice Strekaf referenced MacPhail , noting that it emphasizes the need to take into account the effect on the child of the custodial parent becoming an access parent when determining the best interests of the child: para 17. However, the Court relies on Gordon in making its analysis. [ 39 ] In his reasons, Sullivan J. concluded that MacPhail should be referenced in tandem with Gordon in situations where one parent has primary custody and the other is an access parent, or where a change in custody reduces a custodial parent to an access parent.

In the present case, of course, I am not faced with the situation where there exists one custodial and one access parent. Rather, under the shared joint custody arrangement between the Applicant and the Respondent, both parents were equally engaged in the children’s lives. In other words, given the parties’ joint custody arrangement, neither parent could be presumptively favoured, if ever such a presumption were said to exist.

Under the circumstances, the situation is such that the role of one of the parents will be reduced from a custodial role to an access role. [ 40 ] A shared joint custody situation existed in the recent case of P.O.T. v. B.E.M , 2009 ABQB 256 , [2009] AJ No. 933, aff’d 2010 ABCA 22 , [2010] AJ No. 49, a child custody matter involving mobility. In that case, the mother and father of two children, aged eight and seven, shared joint custody pursuant to a court order. The mother brought an application for a mobility order to permit her to move with the children from Canmore, Alberta, to Montreal, Québec.

As in the present circumstances, the case involved the difficult decision of determining the issue of mobility where both parents were actively involved the daily lives of their children. As the Court of Appeal noted at para 9: A review of the evidence discloses two mature, responsible parents, both focussed on the well-being of their children. There is no suggestion that either has been guilty of any parental misconduct that might affect the best interests of the children, such as attempts to limit the parental rights of the other.

Clearly the children benefit greatly from the close relationship they currently enjoy with both parents. [ 41 ] Despite evidence that the mother had job prospects in Montreal, as well as a residence and the support of her extended family and friends in the Montreal area, whereas the father was an only child whose parents lived in Ontario and had no close family ties in Alberta, the best interests of the children was to remain with their father in Canmore.

The Court of Appeal concurred, stating at para. 14: In short, the evidence clearly supported the trial judge's findings that the children were well-settled and thriving in Canmore, benefiting from all their environment has to offer, and that a move to Montreal on the hope that the appellant will find better employment there was not in their best interests. [ 42 ] Overall, I find the proposed move from Fort McMurray to Edmonton to be considerably disruptive to the two young children.

After having grown up with the Applicant and the Respondent sharing parenting duties, reducing the role of the Respondent to that of an access parent will deprive the children of one of their consistent caregivers. A move that would interfere with the bond between the Respondent and the children will negatively affect the children.

[ 43 ] As in P.O.T. v. B.E.M . , I do not suggest in this case that the Applicant’s departure from Fort McMurray without the children would have any less impact on them than if they were to accompany her to Edmonton. Clearly the proposed long-distance move from Fort McMurray to Edmonton will result in the children seeing either parent significantly less often, and will inevitably diminish the children’s relationship with the separated parent.

However, a change in custody and a relocation from Fort McMurray to Edmonton will not only disrupt the children’s relationship with their father, the Respondent, but will also sever their ties to the community of Fort McMurray, where they are well-settled, with an established support network, extra-curricular activities, and the comfort and familiarity of the city where they were born and raised. 7.

Disruption to the Children Consequent on Removal from Family, Schools, and the Community [ 44 ] The children’s lifelong connection to the community of Fort McMurray consists of ties to schools, sports leagues, friends and numerous family members, including their aunt and cousins with whom they are very close. In comparison, the children’s connection to Edmonton seems tenuous at best. [ 45 ] The Applicant affirms that it is in the best interests of the children to remain with her in Edmonton, along with her new fiancé, her child fathered by him, and the child with which she was pregnant at the time of trial.

She states that she wishes to raise the children of the marriage and her two children fathered by her fiancé as a family. She argues that it is therefore in the best interests of the children of the marriage that they remain with her and her two other children in Edmonton. I have not been provided with any authority to the effect that that is a factor to be taken into consideration in the matter before me. [ 46 ] I am alive to the fact that the children have now lived with the Applicant in Edmonton for the past year.

To order the children to return to Fort McMurray to live with the Respondent now may be a disruptive force in their lives. However, permission to relocate to Edmonton with the children was granted to the Applicant in August 2010 under the condition that the variation in custody be non- prejudicial to any permanent custody order.

In addition, a period of several months in the five and seven year life spans of the children is not sufficient to conclude that removing them from Fort McMurray is in their best interests. [ 47 ] Further, while the Applicant has argued it is in the best interests of the children to relocate with her to Edmonton, I have not been provided with any convincing evidence of ties to the community there, nor any persuasive argument as to why the children should be permanently removed from their home in Fort McMurray. [ 48 ] I consider it particularly relevant to the issue before me that the Applicant’s fiancé works in Fort McMurray and commutes between Fort McMurray and Edmonton on a regular basis.

The Applicant also continues to own a home in Fort McMurray. Indeed, Fort McMurray is the hub of the children’s lives and a place where each parties’ family has important ties. The entire family seems to have a much stronger connection to the city of Fort McMurray than to Edmonton. 8. Conduct [ 49 ] Finally, in light of the contested evidence presented by the Applicant at trial pertaining to the conduct of the Respondent, I find it relevant to discuss the pertinence of a party’s conduct in making a custody order.

Subsections 16(9) and 17(6) of the Divorce Act state that the conduct of either party is only relevant insofar as it relates to his or her parenting abilities: 16.Custody Orders Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct isrelevant to the ability of that person to act as a parent of a child. 17. Variation, Rescission or Suspension of Orders Conduct

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been consideredin making the order in respect of which the variation order is sought. [50] It is inappropriate to place undue emphasis on the conduct of a parent and insufficient emphasis on the best interests of thechildren: see Cox v. Stephen, (ON CA), [2003] OJ No 4371, 173 OAC, 4547 RFL (5th) 1, see also Somerville v.Somerville, 2007 ONCA 210, 36 RFL (6th) 7.

The allegations put forth by the Applicant, had they been proven, may have been reflectiveof the Respondent’s ability as a spouse; however, it does not follow that they are reflective of his abilities as a parent.

Despite the variousallegations and complaints relative to the conduct of the Respondent, no clear and compelling evidence has been presented to convinceme that the conduct of either parent disqualifies them from exercising custody rights in relation to the children. [51] Indeed, prior to Justice Martin’s order for temporary relocation to Edmonton, the children had been raised equally by theparties since their birth.

During that time, both the Applicant and the Respondent proved themselves to be capable, diligent parents, ableto meet the needs and provide for the children and they did so to the best of their abilities.

On the basis of the evidence before me, I amsatisfied that both the Applicant and the Respondent have a strong relationship with their children and that neither parent should havecustody rights relinquished on the basis of past conduct. [52] I am convinced that either parent has the ability to provide the children with the necessities of life, as well as responsibleguidance, a stable home life, consistency and an environment that fosters good mental and emotional health. [53] I am not convinced that the Applicant has exhausted every option for remaining in Fort McMurray, such as finding anotherjob or an alternate shift, to find a reasonable solution which would maximize contact between the children and each parent.

It is not in thebest interests of the children to relocate to Edmonton, whereby the bond they have developed with their father would significantlydeteriorate. Upon leaving Fort McMurray, the children’s relationships with extended family members, friends and their communitysupport network would also be weakened. [54] Given the circumstances of this case and taking into consideration all the facts known at the time of the trial, I cannotconclude that living in Edmonton would be in the best interests of the children.

Further, the Applicant in this case has failed to satisfy thisCourt that the Respondent is unfit to retain custody of the children. I therefore refuse the Applicant’s application to relocate to Edmontonwith the children of the marriage. I grant custody to the Respondent in Fort McMurray. Broad and extended access shall be given to theApplicant and any change in circumstances will require a revisiting of the custody arrangements.

The mother’s desire to raise all of herchildren together can be most conveniently achieved by returning to Fort McMurray with her fiancé and their children. [55] For greater clarity, the Applicant and the Respondent shall jointly make decisions with respect to the following matters inrelation to each of the children: (

a) schooling; (

b) extracurricular activities; (

c) health care. [56] Day-to-day decisions with respect to the care of each of the children shall be with the Respondent when in his primary careand with the Applicant when she has access to the children. The Applicant’s access to the children shall be:

(

a) three weekends per month; (

b) one-half of the long weekends annually; (

c) the full school Christmas, Easter and Spring Breaks in alternate years; (

d) five weeks in the summer, split into one two week and one three week segment; (

e) telephone access at least twice per week in the evening for a minimum of 30 minutes; and (

f) any additional access agreed to by the parties. B. Retroactive Child Support [57] Child support is the right of the child and parents have an obligation to support their children in a manner commensurate withtheir income: D.B.S. v. S.R.G., 2006 SCC 37 , [2006] 2 SCR 231, sub nom Hiemstra v. Hiemstra, L.J.W. v. T.A.R., Henry v.Henry; Federal Child Support Guidelines SOR/97-175. A retroactive child support order does not involve imposing an obligation on apayor parent that did not exist at the time for which support is being claimed: D.B.S. v. S.R.G., at para 68.

The Court may grant aretroactive child support award where no previous award exists: D.B.S. v. S.R.G., at para 84, Divorce Act, RSC 1985, c 3, s. 15.1(1). [58] In D.B.S. v. S.R.G., the Supreme Court of Canada found that awarding retroactive child support is discretionary and outlined amultitude of factors that should be considered when making such a determination.

What is important is certainty for the payor, thereasonableness of the delay in paying appropriate support, the conduct of the payor, the circumstances of the child, and any hardship thata retroactive award would cause. [59] Justice Martin did not deal with child support in her Order of August 25, 2010. The question of retroactive child support wasspecifically raised by the Applicant. Given the conclusions I have reached, I am of the view that there is no reason why retroactive childsupport should be ordered for the period during which the children resided with their mother in Edmonton.

The application for childsupport is dismissed. V. Costs [60] The Respondent has been successful with respect to both issues placed before the Court by the Applicant. In thecircumstances, the Respondent is entitled to his taxable costs throughout. [61] In the event that the parties are unable to agree with respect to the calculation of costs, they may refer the matter back beforeme for further direction. Heard on the 16th day of March, 2011. Dated at Calgary, Alberta this 7th day of September, 2011.

P.M. Clark J.C.Q.B.A. Appearances: C. G. R. Self-represented Clifton D. Jang Thorne & Thorne for the Respondent