Dauphinais v. Gowdy, 2011 ABQB 588

Court of Queen ’ s Bench of Alberta Citation: Dauphinais v. Gowdy, 2011 ABQB 588 Date: 20110927 Docket: 4801 147711 Registry: Calgary Between: Jennifer Diane Dauphinais Plaintiff/Applicant - and - Perry Elroy Gowdy Defendant/Respondent Corrected judgment: A corrigendum was issued on September 30, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.L. Kenny _______________________________________________________ [ 1 ] This is an application by Ms.

Dauphinais (wife) brought by way of a special chambers application to allow her to move to the Province of Quebec with the parties daughter currently age three. [ 2 ] By earlier court orders the parties were granted joint custody of the child with the primary day to day care of the child to be with the wife. Child support was also addressed. The issues of access and mobility were adjourned to be heard at the domestic special.

[ 3 ] After the filing deadlines had passed for the domestic application, Mr. Gowdy (husband) brought an application for 50/50 parenting time with respect to their daughter. I declined to deal with that issue at the domestic special as the application had been brought much too late in the proceedings and the wife had no reasonable opportunity to respond to that application. [ 4 ] Each party has filed extensive material and long affidavits setting forth their positions. The following history arises from those affidavits. [ 5 ] The parties were married in 2004 and separated on January 1, 2011.

There was an earlier separation from July 31, 2010 to December 1, 2010 when the wife moved out with the daughter. An attempt at reconciliation was made in the month of December, 2010 without success. [ 6 ] The wife was born and raised in Quebec. The husband’s family as well is from eastern Canada.

Both parties acknowledge that they had talked often during their marriage about returning to Quebec so that their daughter could be near extended family and be raised in the country. [ 7 ] The parties have differing versions of an alleged agreement that the wife could return to Quebec with their daughter after the marriage breakdown. The wife comes from a small centre approximately 30 minutes from Montreal.

The wife says the husband agreed in February and March of 2011 that she could move back to Quebec to be near her extended family and that they would work out an arrangement for the husband to see the daughter on a regular basis. [ 8 ] Based on this agreement, the wife obtained a job in Quebec and as a result gave notice that she was terminating her employment here in Calgary in anticipation of the move. She says that the agreement between them was that she would transfer her interest in the matrimonial home to the husband and he would assume all of the debts of the relationship.

The wife’s mother came out from Quebec after the daughter was born for a visit and found she was so attached to the child and was such a help to the parties who were both working that she stayed in Calgary for the last two and a half years. She is anxious to return to Quebec as well. [ 9 ] The initial plan was that the parties would fix up and sell the home, pay all of their debts and divide the proceeds between them. The wife would move to Quebec with the daughter.

Her considerations in doing so were to have a much closer relationship with the extended family, the ability to participate in many more extra-curricular activities with her daughter, the reduced cost of living in Quebec and reduced cost of daycare and travel. The wife says that the husband also spoke to the wife’s mother and confirmed his agreement to allow them to move back to Quebec as he realized this was best for his daughter. [ 10 ] The wife started packing her belongings and selling items that she either would not need or could not move with them.

Their daughter was told of the move and became very excited about it. In April 2011, the wife met with counsel to start divorce proceedings so that the agreement between the parties could be finalized legally. [ 11 ] A consent corollary relief order was prepared dealing with custody, the move of the wife to Quebec with the daughter, parenting time, and child support. The husband made a couple of notations on the consent order to clarify some matters. Arrangements were made for the husband to meet with independent counsel to review the order.

At that stage, on April 21, 2011, the husband served a counter-claim for divorce on the wife objecting to her move. [ 12 ] It is the position of the wife that this was the first time she had heard his denial of any agreement. There were other disagreements between the parties however in late April the wife says the husband agreed to allow her to move with the daughter in exchange for her transferring her entire interest in the home to him. He also confirmed this with the wife’s mother and sister.

The parties went to the bank to make all of the arrangements to transfer the mortgage from joint names into the name of the husband alone. The husband assisted the wife in packing up her belonging and those of their daughter and doing whatever else needed to be done to finalize the move which was to take place at the end of May. Arrangements were made for the husband to see their daughter the last three weekends in a row during the month of May as they would be moving at the end of May. [ 13 ] The wife was in a position where she had a new job that she was starting in Quebec on June 20, 2011.

She was fully packed up and ready for the trip from Alberta to Quebec. They had advised all their friends and family of their arrival and she had quit her job in

Calgary in anticipation of the move. The wife says the husband then threatened her that he would charge her with kidnapping if she leftwith the daughter. She therefore brought this application for mobility. [14] The husband says he never had a firm agreement with the wife about the move to Quebec. He acknowledges that they oftentalked about moving back east as that was where the majority of both families reside and he acknowledges that it would be a goodenvironment for his daughter.

He says however that now that the parties are separated, he does not believe it is in his daughter’s bestinterest to move away from him. He denies leaving the wife with the view that he consented to her move with their daughter to Quebec. [15] Since approximately June 2011, he has visited with his daughter every second weekend. He says that she is very happy beingwith him and his extended family. He has a sister and father who reside in Calgary. The husband is currently working for his father.

Heindicated he had to quit his previous job because he found that his attendances at the court house with this litigation were such that hecould not make his commitments to his previous employer. He is not sure how working for his father is going to work out in the longrun. [16] The husband indicates that he will miss his daughter terribly if she were to move to Quebec. He is also worried that his wifewill do everything in her power to make sure that he does not see his daughter.

He is not sure whether he can afford to go to Quebec tosee her or whether he can afford to pay to have her come to Calgary to visit him. [17] I have summarized the pertinent background facts in this matter however there is a great deal of detail in the material filed byeach party. I have reviewed all of that information in coming to my decision. [18] It is necessary in sifting through the detailed background filed by each party to try and determine what is really happening.

Iam satisfied that there was an agreement between the parties that the wife would move with their daughter to Quebec in the vicinity ofher extended family and that the parties agreed that this environment would be beneficial for their daughter. There is a draft corollaryrelief order with handwriting on it which the husband acknowledges is his, which indicates that the wife will be moving to Quebec withtheir daughter.

The changes made to the order by the husband are minor with no change made in regards to the move to Quebec. [19] In addition, I am satisfied from all of the evidence that the husband led the wife to believe that he consented to this move andthat it was in the best interest of their daughter. He helped her to pack up all of her and their daughter’s belongings and knowinglyallowed her to quit her job in anticipation of the move. After all that was done, he advised her that he would not allow it and if sheactually left he would charge her with kidnapping.

Despite his conduct, the wife managed to find a place to live and find employment inorder to support her and their daughter awaiting the conclusion of this litigation. [20] I accept the evidence of the wife that although the husband has continued to reside in the matrimonial home, he has failed topay a number of mortgage payments and the home is now at risk of foreclosure. He has also failed to pay any monies at all as support tothe wife pursuant to the order of Justice Horner. His arrears under that order are over $2,000. He has made no contribution to child careexpenses.

In argument the husband indicated that he was making immediate arrangements to pay the mortgage payments and to pay all ofthe support. However, as of the date of this hearing there is no indication these arrangements have taken place. [21] The leading decision in the area of mobility is Gordon v. Goertz (SCC), [1996] 2 SCR 27 (SCC). First, theparent applying for a change to the existing parenting arrangement must demonstrate a material change in circumstances affecting thechild.

The contemplated move of the wife with the child to Quebec meets this test. [22] The court must then embark on a fresh inquiry as to the best interest of the child. [23] The factors in Gordon (supra) to consider are as follows: (

i) The existing custody arrangement and relationship between the child and the custodial parent and the access parent.

[ 24 ] The material filed indicates the wife has been the primary care giver of the child throughout the marriage and certainly since separation. The husband has had a more hands-off role. This in no way denies the fact that he loves his daughter very much and wants the best for her.

It is also clear that he wishes to maintain regular contact with her. (ii) The desirability of maximizing contact between the child and both parents [ 25 ] If parents are not in the same location, that is not to say that arrangements cannot be made to ensure that the husband has regular albeit not as regular contact with his daughter. [ 26 ] I accept the evidence of the wife that the parties discussed the visitation issue. The draft corollary relief order indicated that the parties had agreed on reasonable and generous access time to the husband.

The wife had originally requested written notice of any request for parenting time and the husband had changed that to reflect verbal notice as he thought there would sometimes be air specials to accommodate flying between Quebec and Alberta. It is clear that any access between the husband and daughter would have to be for extended periods of time such as holiday periods or other times when the husband has time off work in order to spend time with his daughter.

This would include extended time in the summer and some time over the Christmas and Easter holiday periods. (iii) The views of the children [ 27 ] Although the child is much too young to express any views, it does appear that she is clearly aware of the intended move to Quebec and is excited about it. This is because the move was discussed with her during the time that the wife was of the view the parties had an agreement. Lately since the start of this litigation, the daughter has been making comments to the effect that her mother was trying to take her father away from her.

It is the wife’s view that the husband has been filling the daughter with these thoughts. As she has indicated in her evidence, the wife has been nothing but positive about the daughter and husband and their ability to see each other regularly after the move. (iv) The custodial parent ’s reason for moving - only in the exceptional case where it is relevant for that parent to meet the needs of the child. [ 28 ] In this case the wife left her employment on the understanding that she was moving to Quebec with the agreement of her husband.

She has employment there which she is unable to take until this matter is resolved. She also points out that not only does she have her mother and her extended family in Quebec but the cost of daycare in Quebec is significantly lower than the costs in Calgary. As such this will save money for both parties and, in particular, in order to assist the parties with access costs. (

v) Disruption to a child of a change in custody. [ 29 ] There is no indication by either party that custody or primary care of their daughter will change. In his counter claim for divorce the husband set out the visitation times he would like with his daughter which was every second weekend, alternation of statutory holidays and two weeks holidays in the summer. (vi) Disruption to the child consequent on removal from family, schools and the community he or she has come to know. [ 30 ] The child is currently three years of age.

She is inextricably linked to her mother and grandmother who have been her primary care givers. The husband acknowledges that he has had very little involvement in his daughter’s activities. He blames that on his wife not telling him of the activities, however there is a difference of opinion as to what actually has happened. [ 31 ] There is no doubt that the daughter enjoys spending time with her father and the wife acknowledges this and supports the relationship of the daughter with her father. The wife indicates that the husband’s family in Calgary were not involved with the daughter

by their own choice until recently despite the wife’s encouragement. They recently became involved once the parties separated and the husband had his daughter with him on weekends. During those periods of time over the last two to three months he had taken the daughter to his sister’s home. Given the age of the child, she is not yet tied in to outside activities with other people. Decision [ 32 ] I am satisfied on all of the issues before me that it is in the best interest of the child to move with her mother to Quebec. It is unfortunate that this matter reached the state that it did.

It appears that the parties agreed during their marriage, and at the time of separation, that a move by them and latterly by the wife to Quebec with their daughter was in the best interest of their daughter. All arrangements were made to that effect with the wife putting herself in a very disadvantaged and difficult position based on what she understood was an agreement between the parties and which I find was an agreement between the parties.

I have no doubt that the husband will miss his daughter very much by not being able to see her on a regular basis, however, modern technology allows for video interaction as do regular phone calls and extended holiday visits. [ 33 ] The husband is concerned that if the move occurs, he will never see his daughter again. In order to ensure that does not occur, this court will retain jurisdiction in this matter for two years from the date of this decision. This will ensure that the husband has regular access to the child as contemplated between the parties.

If after two years the wife and daughter are still residing in Quebec, it would be appropriate for that court to take jurisdiction of this file. [ 34 ] I do not wish to specify particular access times as I am unaware of the husband’s

schedule at work and his ability to either go to Quebec to visit with his daughter there or to make arrangements for his daughter to come out to Calgary. The wife however will pay one-half of the costs of flights for extended access visits and the husband shall be entitled to exercise such access at times to be agreed during summer holidays, over the Christmas and/or Spring break holidays, and any other times as agreed. [ 35 ] There will be an order prepared as follows:

(1) The parties shall have joint custody of their daughter.

(2) The wife shall have day to day care of the child and may reside with the child in the Province of Quebec.

(3) The husband shall have reasonable and generous parenting time with the child at times agreed to by the parties.

(4) That access shall be in either Quebec or Alberta.

(5) A

schedule for access time over the next year along with a specified time each week when the husband may call the daughter to speak with her are to be provided to me within 45 days failing which I shall set an access

schedule which may not suit either party. This will allow the parties an opportunity to agree on access times that work best for them.

(6) The husband and wife shall each advise the other of their address and telephone number and will keep each other advised of any changes in those if and when they occur.

(7) The parties shall communicate by way of text messages.

(8) The order by Justice Horner shall be amended to include a clause which indicates the parties shall share in proportion to their income all

section 7 expenses. At the present time these would include only child care expenses and health and dental expenses since there are no extra-ordinary, extra-curricular or educational expenses.

[ 36 ] Either one of the parties may present these Reasons for Judgment to the Court Generated Orders Clerk at the Court Services Family Justice Services on the 7 th floor of the Calgary Court House so that an Order may be prepared for my signature. Heard on the 6 th day of September, 2011. Dated at the City of Calgary, Alberta this 27th day of September, 2011. C.L. Kenny J.C.Q.B.A. Appearances: Jennifer D.

Dauphinais Self-represented Plaintiff/Applicant Perry Elroy Gowdy Self-represented Defendant/Respondent _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Madam Justice C.L. Kenny _______________________________________________________ Page 1: Delete: 0701 03254

Replace with: 4801 147711