Unrau v. Freake, 2011 ABQB 663

Court of Queen’s Bench of Alberta Citation: Unrau v. Freake, 2011 ABQB 663 Date:20111103 Docket: FL03 28364 Registry: Edmonton Between: Kelly James Unrau Appellant - and - Jessica Louise Freake Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M.

Ross _______________________________________________________ [1] I previously allowed the appeal of the February 11, 2011 decision of the Provincial Court on this parenting time claim on thegrounds of two errors of law, both reviewable on a standard of correctness. [2] The first error was that the trial judge took the mother’s decision to move to Calgary with the parties’ two year old daughterK. as a given and did not apply the factors outlined in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 to determinewhether this was in K.’s best interests.

The trial judge did apply factors under the Family Law Act, S.A. 2003, c. F-4.5, s. 18, in

determining the best interests of the child, and the Respondent argued that the error of law did not affect the result. That might have been the case if this were the only error, but the trial judge made a second error when he refused to allow the Appellant to proceed with his uncontested application for guardianship of K. during the hearing, and to adjourn the contested hearing with respect to parenting time. The Appellant sought an adjournment of his application with respect to parenting time on the ground that he had only been advised 9 days before the hearing of the respondent’s intention to move to Calgary.

He had not prepared a parenting plan to deal with this very recent change in circumstances. The trial judge responded to the Appellant’s request for an adjournment that either both aspects of the application, for guardianship and parenting time, would be adjourned, or neither one. The Appellant expressed a concern that adjourning on this basis would prejudice his position, as without guardianship of K. he would lack standing to prevent the Respondent from moving with K. The trial judge gave no reasons as to why both aspects of the application had to proceed together.

I concluded that the denial, without reasons, of the requested adjournment was an error of law that affected the fairness of the hearing. [ 3 ] Having allowed the appeal, I determined, pursuant to Rule 12.70 of the Alberta Rules of Court that the appropriate remedy was not to return the matter to Provincial Court for a new hearing pursuant to Rule 12.70(d), as this could involve a significant delay. I note that the initial Claim was filed with the Provincial Court on April 30, 2010. It was heard on February 11, 2011, a delay of almost 10 months.

I concluded that there would be significantly less delay in exercising my jurisdiction under Rule 12.70(

c) to make any order the Provincial Court could have made, determining the best interests of K. and allocating parenting time accordingly. The parties were given additional time to provide updated information regarding K.’s care since she moved with her mother to Calgary in February 2011, to assist me with this determination. It was agreed that this new evidence was appropriately admitted on the appeal [ 4 ] The father and his common law partner both filed affidavits.

Pursuant to the Interim Order Pending Appeal of Yamauchi J. granted on May 3, 2011, the father has exercised four periods of access of one week’s duration and one period of access of two weeks’ duration, as well as weekend access periods, pending the hearing of this appeal.

The father and his partner depose that K. is comfortable and thriving in their care, that she regards their home as her home, and that she does not show signs of missing her mother when she is with them. [ 5 ] Assuming the mother stays in Calgary as she deposes she intends to, the father proposes that K. have her primary residence with him in Edmonton, or alternatively, that she spend two weeks on and off with each parent.

This would only be workable until K. goes to kindergarten, but that is still three years away. [ 6 ] The mother also filed an affidavit, detailing the reasons for her move to Calgary and how things have worked out there.

She is earning $36,000 in her new job rather than $27,000 that she had earned previously, and this has made a significant difference to her and K.’s quality of life, in terms of having a better home in a better neighbourhood and sufficient funds to participate in extracurricular activities. [ 7 ] Both parents have some complaints about the other; the father says that the mother is not flexible about additional parenting time; the mother says that the father does not communicate with her with a view to ensuring a consistent approach to parenting K. In my assessment, there is not much substance to either complaint.

The father has only one example of where he was visiting Calgary and did not get extra parenting time as contemplated by the Provincial Court order. The mother points out that this was the day before his two weeks’ parenting time under the Interim Order, and says that the father agreed that K. could spend the last overnight with her mother before the extended time away. The mother does not point to anything about the father’s parenting that is harmful to K., and she is not entitled to determine parenting style in the father’s home.

It might well be best if both parents could mutually arrive at consistent approaches to parenting issues, but the mother cannot dictate what is to happen in the father’s home. [ 8 ] I turn to a consideration of Gordon v. Goertz , at paras. 49-50 : 49 The law can be summarized as follows: 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change 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. 50 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? [ 9 ] The Court provided additional comments on the principle of maximum contact between the child and both parents, noting that this principle is “mandatory, but not absolute”, and must be respected “to the extent that such contact is consistent with the child’s best interests”: Gordon v. Goertz , at para. 24 .

The impact of this principle in the context of a proposed move was described as follows, at para. 25: The reduction of beneficial contact between the child and the access parent does not always dictate a change of custody or an order which restricts moving the child. If the child’s needs are likely to be best served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the judge should not vary custody and permit the move.

This said, the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child. [ 10 ] The principle of maximum contact, found in the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp.), ss. 16(10) and 17(9) , is not expressly included in the Family Law Act , but has been recognized and applied in cases coming under that Act: Gordon v. Towell , 2010 ABQB 396 , at para. 23 , citing D.S.W. v. D.L.W. , 2009 ABQB 279 , at para. 20 .

[ 11 ] The Court also provided additional details in relation to the principle that the custodial parent’s reason for moving is relevant only in exceptional cases where it has an impact upon that parent’s ability to meet the needs of the child. The Court noted that the reason for the move “may reflect adversely on the parent’s perception of the needs of the child or the parent’s judgment about how they may best be fulfilled”, for example if the decision to move was motivated by a desire to “thwart salutary contact between the child and the access parent”: Gordon v.

Goertz , at para. 23 . [ 12 ] I proceed now to apply the Gordon v. Goertz factors and consider the best interests of K. in light of the evidence before the trial judge, and the new evidence of circumstances since the trial. [ 13 ] Regarding the requirement to show a material change in circumstances, this was an initial application for parenting time, so that requirement is not applicable. In any event, the mother’s move to Calgary would constitute a material change. [ 14 ] The trial judge made an inquiry into the best interests of K., applying the factors in s. 18 of the Family Law Act .

He did not, in the course of this inquiry, direct himself that there should be no legal presumption in favour of the custodial parent, in fact he appeared to take as a given that K. would move to Calgary with her mother. He did not consider whether the mother’s decision to move to Calgary might have been motivated by a desire to “thwart salutary contact” between K. and her father, despite the timing of her decision in face of the father’s application for increased parenting time.

Finally, he did not expressly consider the principle of maximum contact. [ 15 ] Notwithstanding these errors or omissions, after taking into account the new evidence as well as the evidence before the trial judge, I have also come to the conclusion that it is in K.’s best interests to relocate to Calgary with her mother, rather than remaining in Edmonton in the primary care of her father. K. has been cared for, as the trial judge observed, “by far ... predominantly” by her mother.

There is nothing in the evidence, and no complaint by the father, which would suggest that the quality of the mother’s caregiving is lacking in any way. K. is very young, and stability in regards to her most significant relationship is very important. While the timing of the mother’s decision to move was somewhat suspect, I am satisfied that the mother did not make the move out of a desire to thwart contact between K. and her father. Firstly, as noted by the trial judge, the mother has consistently worked towards developing a relationship between K. and her father.

She continued to do so in the context of the move to Calgary, offering access time every other weekend, for extended weekends, with the driving equally shared. Further, the mother explained to the trial judge and in greater detail in the new evidence the advantages of the move to Calgary, not only for herself, but also for K. An increase of 25% in the mother’s income, particularly given the low level of her income in Edmonton, provides a meaningful change in quality of life for both of them. [ 16 ] Because K. is very young, she does not attend school and is not significantly affected by the change in community.

The mother’s extended family does not live in either Edmonton or Calgary; the father’s extended family lives in Edmonton but has not played a large role in K.’s life to this point. It is more important to K. at this stage of her life that the relationship with her primary caregiver remain stable, rather than her somewhat minimal connections with her community be maintained. [ 17 ] The move has certainly affected the father’s parenting time with K. The mother offered to take steps to facilitate weekend visits, and she has complied with the Interim Order in facilitating weekend and longer periods of access.

However, the father’s weekly parenting time on Thursdays is no longer practicable. [ 18 ] While contact with the father is affected, the principle of maximum contact with both parents would not be improved by having K. live in Edmonton with her father providing her primary residence. That would just mean that the mother’s parenting time would be negatively affected. I agree with the trial judge that the history of the relationship between these parties suggests that the mother has been the more cooperative of the two parents in facilitating parenting time with the other parent.

I am not at all sure that the father would make the same efforts the mother has if K. were living with him and he had to facilitate parenting time for the mother in Calgary. [ 19 ] The father had sought an order for week-on, week-off parenting; this was rejected by the trial judge and was not proposed before me. This plan would simply involve too much disruption and too much driving with the parents living as far apart as Calgary and Edmonton. The father now proposes that parenting be split on a two-weeks on, two-weeks off, basis. This would have the advantage of less driving.

The father and his partner depose that K. spent a two-week period with them during the summer, and was comfortable with them and did not show signs of missing her mother.

[ 20 ] I do not believe that this form of shared parenting is appropriate for such a young child, who has always had her mother as her primary caregiver, and whose parents live in two cities with at least a three hour drive between them. The fact that K. was happy during one two-week holiday in the summer does not mean that she would do well if she were away from her mother for two weeks out of every four, without even the possibility of mid-week visits by her mother. Phone calls are not a substitute for in-person visits with such a young child.

Of course, the father has the same concerns when K. is in Calgary, but my focus has to be on K.’s best interests, not the interests or rights of her parents. K.’s most significant relationship at this time of her life is her relationship with her primary caregiver, her mother.

At this stage, being away from her mother is more likely to have a negative effect on K. than being away from her father. [ 21 ] I might have had the same concerns about the effect of week-long periods away from her mother on K., except for the fact that under the Interim Order K. has now had four one-week visits with her father (as well as one two-week visit) and there is no evidence of negative effects.

The father and his partner depose that K. has consistently been happy and comfortable during her times with them, and while the mother has expressed some concerns about communication and establishing routines for K., for example regarding nap time and potty training, she has not suggested that the visits have had a negative impact on K., other than some tiredness on Monday mornings after access. [ 22 ] Monday morning tiredness could also be an impact of long days including travel on Sundays. The father has expressed concern about travel time, especially in relation to weekend visits.

The parents have been meeting in Red Deer on Friday and Sunday. The drives occur during what would normally be K.’s supper time, which affects the quality of the parenting time. [ 23 ] During submissions, I canvassed the parties regarding their views about different forms of access. The father indicated that it was more important to have longer visits (one week), rather than ensuring that visits occurred every two weeks. The mother did not express concerns about one-week visits continuing on a monthly basis.

She suggested that visits take place during the second week of each month. [ 24 ] For these reasons, while I agree with the trial judge that K.’s primary residence should remain with her mother in Calgary, I have decided that the provisions relating to the father’s access time should be varied. Rather than two weekend visits per month (as provided in the Provincial Court Order), or one weekend and one week long visit per month (as provided in the Interim Order), the father’s parenting time should consist of one eight-day period per month, from noon on Saturday to noon on the following Sunday.

Exchanges will continue to take place in Red Deer. This arrangement will minimize driving, and ensure that the driving that must be done is during day-time hours, which should be less tiring for K. The father will have parenting time for the majority of two weekends, as well as the week in between. K.’s time away from her mother for most months will be just over a week.

There will be adequate time during the remainder of the month in Calgary for K. to settle into a routine with her mother, and to ensure the stability of K.’s very important relationship with her primary caregiver. [ 25 ] During the summer, there should continue to be one two-week period of parenting time for the father, as occurred during the past summer. [ 26 ] Subject to these variations, other provisions of the Provincial Court Order, including those pertaining to holidays, should continue. [ 27 ] The parties may speak to me regarding the precise terms of the Order and regarding costs, if they are unable to agree.

Heard on the 7 th day of September, 2011 and 29 th day of September, 2011. Dated at the City of Edmonton, Alberta this 1 st day of November, 2011.

J.M. Ross J.C.Q.B.A. Appearances: Larry Robert Hawkeye for the Applicant Denise J. Kiss for the Respondent