AL v CC, 2011 ABQB 819

Court of Queen ’ s Bench of Alberta Citation: AL v CC, 2011 ABQB 819 Date: 20111230 Docket: FL03 30271 Registry: Edmonton Between: AL Plaintiff/Applicant - and - CC Defendant/Respondent Corrected judgment: A corrigendum was issued on January 9, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________

Background [ 1 ] The Parties AL and CC began living together in the Spring of 2000. They were never married, and their relationship ended in 2003. The Parties have two children together (hereinafter the “ Children ” ) presently 10 ½ and 8 ½ years of age, who are the subject of this Mobility application by the Mother who would like to move with them to S[...], Alberta approximately 5 ½ hours away by car. The Parties and the Children of the relationship have resided in the town of W[...], Alberta throughout. [ 2 ] The Applicant Mother AL (hereinafter the “ Mother ” ) was 37 at the time of this hearing.

She grew up in W[...] and was raised in the Mormon church. The Mother indicated that she left her parent's home when she was 15 by agreement as she could not abide by her parent's rules. At age 17 the Mother gave birth to her oldest child who is now age 19 ½ . The Mother married the oldest child ’ s father, but that relationship ended after a year and a half as the child ’ s father went to jail for a break and enter. Her oldest child was a difficult child at times. In 2006, he dropped out of school when he was in grade 9, and was in trouble with the law.

The boy ’ s father was rarely, if ever, involved in his upbringing or support. However this oldest child is no longer in trouble with the law, and he does not reside with either of the Parties currently. [ 3 ] The Mother's second oldest child is now age 17. The Mother indicated that she did not have a relationship or date the second child ’ s father. The Mother ’ s mother (hereinafter “ B ” ) indicated that she had met the second oldest child's father on several occasions and he had treated the oldest child cruelly.

B indicated that she knew this because the oldest child was scared to go with the second oldest child's father. The second oldest child's father has never apparently been informed of the second oldest child's birth. [ 4 ] The second oldest child dropped out of school when she was fifteen, for a variety of reasons, one being that she was having personal conflicts with the teachers ’ attitudes. However she resumed her studies, went back to school in 2010, and is now again in school this year.

She appears to have resolved her difficulties in school, and is a close half sibling/older half sister to the Children. [ 5 ] The Mother completed a secretarial/office work diploma program. She was a stay at home mother to the Children. Her pregnancies were difficult and the Mother required bed rest. The Mother was not employed outside the home during the relationship, but did obtain outside employment after the relationship ended in December 2003. [ 6 ] The Respondent, CC (hereinafter the “ Father ” ) moved to W[...], Alberta at an early age.

He was active in the community throughout school and played many different sports. He was the graduating class president and on the yearbook committee. He has been active in the community. He enjoyed school and did a year in Red Deer College in the Education program, however decided to quit and try some different things. [ 7 ] In early 2000, the Mother met the Father. In the spring or summer of 2000, the Parties moved in together. Soon thereafter, the Mother became pregnant. She indicates that she was surprised as it was supposed to be very difficult for her to get pregnant.

On May 24, 2001, the couple ’ s first child now age 10 ½ was born. The Parties ’ relationship was volatile and they separated at least twice during the relationship. At one of the first child ’ s birthday parties, the Mother announced that she was again pregnant and subsequently the couple ’ s second child now age 8 ½ was born. Both the Mother and the Father were delighted at the children ’ s birth.

From the outset the Father was very involved, including changing and feeding the babies, although his involvement with the oldest child and second oldest child was more reserved. [ 8 ] During their relationship, the Father bought a home and the Parties moved into that home. In mid-December 2003, the Parties separated. The Father moved out of the home. [ 9 ] While together, the Father tried to help the oldest child. He felt that the oldest child was bullied in school and he felt badly for him.

The Parties placed both the oldest child and second oldest child in the Sylvan Learning Centre program and the children moved upwards by several grades. The Father did not exercise access to, or pay formal support for oldest child and second oldest child after the Parties' relationship ended. The Father indicated that the Mother never asked for support for the oldest child or second oldest child. The Father did see them in school and around town and spoke with them when he saw them.

The Father indicated that he had recently given the oldest child his old Suburban so that he and his grandfather could work on the transmission together.

[ 10 ] In 2004, unbeknownst to the Father, the Mother left to visit “ Elder Ross ” in Texas. She left the Children with her parents in Edmonton. The Mother said that she did not tell the Father where she was going or where the Children were. There was an Order granted by the Court in 2004 with respect to access, however it was not available despite their efforts to either party at the time of the recent hearing, given the number of action numbers in this matter. [ 11 ] On April 8, 2005, the Parties entered into Minutes of Settlement (hereinafter the First Agreement). Both Parties had independent legal advice.

Paragraph 2.6 of that Agreement stated that: – The parties acknowledge that this custody arrangement will work best if they continue to reside in the same geographic area. The parties agree that neither party shall move from the geographic area with the children without the consent of the other party or Court Order. [ 12 ] The Mother stated in her Cross-Examination that despite what the Parties had signed, the Parties had entered into a shared parenting regime prior to the First Agreement arranged around the Father's work

schedule which gave the Father 50% of the time with the Children (5 day on, 4 days off, 5 days on, 5 days off, 4 days on, 5 days off). [ 13 ] There were also terms of the Agreement that dealt with the property as follows: –

a) The home that the Father had purchased during the relationship was to be transferred to the Mother's name;

b) The Father would pay the Mother the sum of $2,000 upon the signing of the agreement;

c) The Father would commence paying child support in the amount of $950 per month;

d) The mortgage was refinanced to include $21,051.59 in debt which was to be the Mother ’ s responsibility, leaving the Father with approximately $81,000 of debt. This debt included an amount owing on the Father ’ s 2002 Explorer which remained in his possession after the separation;

e) The Mother and Father would both obtain a life insurance policy in the sum of $200,000;

f) The Mother would, within one year, have the Father's name removed from the CMHC mortgage. If she was unsuccessful, the Mother would continue to attempt to refinance the mortgage in her own name;

g) The Mother would commence paying the mortgage, taxes and insurance for the home on May 2, 2005. [ 14 ] It was acknowledged in the First Agreement that during the relationship the Father had cashed in $30,000 in RRSPs he had owned previous to the relationship, but he also brought debt into the relationship. The home was valued at $155,000 and the mortgage was approximately $141,000, so the home had estimated equity of $14,000. [ 15 ] In accordance with the First Agreement, the Father: –

a) Provided the Mother a Transfer of Land;

b) Paid the Mother the sum of $2,000;

c) Forwarded a signed Transfer of Land to the Mother's solicitor, Mr. Chad Bowie;

d) Obtained $200,000 worth of life insurance. [ 16 ] The Mother never paid the mortgage, taxes or insurance on the home on May 2, 2005 or anytime thereafter because she says the Father did not pay her any child support, which should have included retroactive payments from March 1, 2005. The Mother never made any attempt to have the mortgage assumed or transferred into her name. The home was never transferred into her name despite the transfer documents being forwarded.

The Father never paid the Mother any child support as he felt he had to pay the mortgage, taxes and insurance on the home in order to protect his credit rating. The Father subsequently remortgaged the home as he indicated that he was carrying too much debt. [ 17 ] In the summer/fall of 2005, the Parties were involved in an altercation over whether one of their Children should be baptized in the Catholic Church, that led to the Father being criminally charged. The Father was never convicted and instead entered into a Peace Bond.

The Father indicated in the current hearing that he diligently tried to keep the terms of the Peace Bond. The Mother indicated in her Cross-Examination that she reported the Father several times to his Probation Officer for breaches, however the Probation Officer failed to take any action. [ 18 ] The Mother then met DC on the Internet site “ Mormon Chat ” , and in the fall of 2005 he visited the Mother in Canada as he was from Texas. On Valentine's Day 2006, Mr. DC came to W[...], Alberta, they became engaged, and subsequently married on March 28, 2006.

The Mother indicated that she must have conceived on the wedding day and the youngest child now age 5 was born at the end of 2006. Mr. DC left the Mother 51 days after the marriage and she has not had contact with him since. The police were involved as they were contacted by Mr. DC who felt he was being "kidnapped" by the Mother, although by all accounts this was a preposterous allegation. The Mother commenced divorce proceedings against Mr. DC in June 2011, nearly 5 years later. She has never received child support for the child and Mr. DC has never seen the child.

The Second Agreement [ 19 ] In the Fall of 2008, the Father brought an application to sell the home as it had become clear to him that the Mother had no intent on abiding by the property terms of the First Agreement. The Mother believes that the Father made it impossible for her to keep the Home because he refused to pay her child support pursuant to the First Agreement, and by his refinancing of the Home increased the mortgage to an amount beyond the Mother ’ s means. [ 20 ] There was a great deal of negotiation that occurred prior to the second agreement being signed.

JG the Father's sister (hereinafter “ JG ” ) indicated that she had called the Mother in April of 2009, and had asked the Mother if she was going to sign the second agreement. The Mother said that she was feeling bullied and threatened by the Father with respect to the Home. She said that she felt that the Home was worth $300,000 and that she deserved some money for the renovations she had done.

JG questioned the value of the Mother's renovations and then told the Mother that if she was really feeling bullied and threatened, she should go to the police. [ 21 ] On May 8, 2009, the Parties entered into Minutes of Settlement again, both with independent legal advice. In the

Preamble of that Agreement, it stated: –

PREAMBLE . . . AND WHEREAS this Agreement shall supersede all existing Agreements which have been made by the parties;

. . . AND WHEREAS the parties have, by this Agreement, decided to settle the questions of custody of the infant children; . . . Paraagraph 2.2: Each of the parents shall exert every effort to maintain free access and unhampered contact between the children and the other parent and to foster a feeling of affection between the children and the other parent. Neither parent shall do anything which would estrange the children from the other, would injure the opinion of the children as to mother or father or which would impair the natural development of the children's love and respect for each of the parties.

Paragraph 2.3: It is the intention of the parties that each of them shall continue having a full and active role in providing a sound, moral, social, economic and educational environment for the children and continue that support which the children have received to date. The parties shall consult with one another in all questions relating to religious upbringing, educational programs, significant changes in social environment, health and welfare of the children.

The parents shall exert their best efforts to work cooperatively in future plans consistent with the best interests for the children and in amicably resolving such disputes as may arise. . . . MOBILITY Paragraph 3.1: It is acknowledged by both the FATHER and the MOTHER that it is in the Children's best interests that each parent be involved in the day to day parenting of the Children.

Both the FATHER and MOTHER have discussed the effect of one party moving the Children away from one of the parents and remaining in the same Town and school and have agreed that it is in the Children's best interests that the Children shall remain in the Town of W[...] until the Children have graduated. Paragraph 3.2: Both parties will provide the other with 180 days written notice of their intention to move from the Town of W[...], indicating the date and destination of intended new residence. [ 22 ] The Mother needed somewhere to live with her five children. The Parties discussed several solutions.

The Father had showed the Mother a duplex across from the school that the Mother could rent, and indicated that he would then pay child support, however the Mother wanted to own something and felt that the rented duplex was unsuitable. The Mother chose a Mobile Home from several presented by the Father that he felt she could afford.

The Mother indicated that she viewed the Mobile Home at least four times before she agreed on the Mobile Home selected, but she never obtained an inspection as the owner had done one. [ 23 ] With respect to the mobile home, Para. 4.5 of the Second Agreement stated that: – The parties acknowledge and agree that the Mobile Home is acceptable to the MOTHER upon the condition the kitchen is renovated. ... The FATHER will pay the MOTHER the sum of $4,000 to assist with renovation by May 8, 2010.

The FATHER will immediately purchase carpet for the amount of $405 to put in the addition. [ 24 ] It was a further term of the Agreement that in lieu of s. 9 child support the Father would pay the mortgage payments on the mobile home for the Mother until August 2013 at which time the Mother would own the mobile home. Paragraph 4.4.9 indicated that the Mother would vacate the Home she had been living in by May 15, 2009. [ 25 ] Further terms contained in the Second Agreement included: – Paragraph 6.3: The MOTHER will immediately remove Instruments registered as 082 158 431 and 082 163 509 against the Home;

and SEVERABILITY Paragraph15.4: If any term of this Agreement is or becomes unenforceable, then that term shall be severed from the Agreement and the rest of the Agreement shall remain in force. [ 26 ] The Mother's lawyer signed a Certificate of Independent Advice, and the Mother signed an Acknowledgement which stated: “ I am executing this Agreement freely and voluntarily without any compulsion on the part of Mr.

CC ” . [ 27 ] The terms of the Lease and Purchase Agreement that the Father entered into with Jim Hutchinson on May 8, 2009, the owner of the Mobile Home, were that the Father would put $5,000 down on the Mobile Home and make payments of $820 per month. In addition, the Father was to pay $32.20 per month for taxes as well as pay insurance on the trailer. Pursuant to the Second Agreement, the Mother was to pay the Lot Rent. [ 28 ] On June 23, 2009, the Mother and the Father entered into a Lot Rental Agreement. Paragraph 7 of the Lot Rental Agreement stated that: – MOBILE HOME ONLY - ...

Mobile home must be owner occupied: no rental units in the Mobile Home Park. [ 29 ] Paragraph 12 of the Lease and Purchase Agreement stated according to the Father that he was not to allow anyone, other than the Mother, to live in the Mobile Home. There is no evidence however that any of the other parties to the Lease interpreted this to mean no temporary or overnight guests were allowed.

There is no evidence that the Mother ever rented out the mobile home. [ 30 ] The Mother moved into the Mobile Home, and the Father moved into the former matrimonial Home to discover that the renovation completed by the Mother had allegedly been so damaging to the Home that it had actually affected the structure of the home. The Father provided a quote from Acceptable Solutions that indicated that at least $25,000 in renovations had to be completed on the home in order to bring it up to Building Code standards to have it sold.

Carol Allen, the Mother's witness, indicated at the hearing that she thought that the house would be worth about $190,000 at this time. [ 31 ] In the Summer of 2009, the Father had a verbal altercation with the Mother on the deck of the Mobile Home when the Mother asked him for more money. When he refused to give money to her, she allegedly refused to allow him to take the Children to their lessons. The Father acknowledges saying something very unkind to the Mother.

The Mother's new boyfriend, NT, then arrived on the scene and threatened the Father, however the Parties moved the dispute away from the others, in particular the Children who were in the home, and managed to settle everything down. [ 32 ] In July 2010, Jim Hutchinson called the Father and told him that someone other than the Mother was living in the Mobile Home and that the Mother was in breach of the Lease and Purchase Agreement. On July 26, 2010, the Father says that he wrote a letter to the Mother indicating that she had breached the Agreement(s).

He also indicated that she had failed to inform him of her decision. The Father indicated he gave the Mother the letter, but the Mother indicated that she cannot remember receiving the letter. [ 33 ] The Mother indicated that she decided to move out with NT as an interim arrangement, so that he could provide child care for all five of her Children in the Summer while they were out of school and while she worked. She indicated that she had not asked the Father to first provide care for the Children, or advised him of her decision to move, or where the Children were living as this was just a summer arrangement.

NT was not primarily responsible for caring for the Children while the Mother was at work - the oldest daughter then aged 16 was.

[ 34 ] On July 28, 2010, the Father posted an eviction notice on the door of the Mobile Home. The Mother moved back into the Mobile Home in the end of July 2010. [ 35 ] The Mother indicated that the police were not involved with NT until later in the Fall after he had left her as he had been stalking her and indicated to her that he was suicidal.

She feared for his life so she had called the police. [ 36 ] Despite letters being sent to the Mother's lawyer on July 30 and September 29, 2009 and January 12, 2010 and telephone conversations with the lawyer's assistant on October 28, 2009, and November 19, 2009, the Mother allegedly refused to remove the Lis Pendens on the Father's home. On November 30, 2010, the Father had to file an application in order to compel the Mother to remove the Lis Pendens. The Lis Pendens was not removed from the Father's home until February 11, 2011, nearly 21 months after the Parties entered into the Second Agreement.

Whether the Mother was solely at fault for this delay however was never fully explored at Trial. [ 37 ] Approximately two years after this matter was settled for what the Father hoped was the last time, the Mother advised him that she was contemplating moving with the Children, despite the Second Agreement. [ 38 ] In February or early March 2011, the Mother indicated that she asked to meet the Father at Tim Hortons. At that time, she told the Father that she was thinking of moving to S[...] with her new boyfriend, DR and wanted to know what the Father thought of this.

The Father says that the Mother had already decided she was moving, asked him how he wanted to exercise his access, and that the Mother had already discussed the move with the Children. In any event, the Father indicated that the Parties had an Agreement, and that she could not move with the Children. The Mother later decided that she was definitely moving, and would proceed to Court have the issue decided. [ 39 ] The Father did not pay the $4,000 owing pursuant to the Second Agreement for the Mother ’ s renovation costs for the mobile home until shortly before this Trial.

DR [ 40 ] DR is 35 years old who owns a very successful oilfield reclamation business. He earned $260,000 on his 2010 personal income tax. He met the Mother on Match.com in October 2010. He visited with the Mother several times and then he met the Children sometime around Christmas 2010. He has been giving the Mother $1,000 per month, and is helping pay her current legal fees. [ 41 ] Mr. DR is a hard-working individual with a seemingly excellent background, and solely owns/operates an outstanding financially successful business.

He has bought a new house in S[...] that backs onto the golf course that will accommodate all of the Mother ’ s children. Mr. DR works sometimes as long as 11 hours a day, 6 days a week. He also owns a satellite office in Lacombe and travels there 6 or 7 days per month. [ 42 ] Mr. DR indicated that he intends to enter into a “ prenuptial ” type of agreement with the Mother that states that if the relationship between them fails she may remain in the S[...] home for one year and he will pay her financial support for 6 months. [ 43 ] Mr. DR indicated that he has been in two prior relationships.

One of those ladies had a little boy with whom he had bonded well. However he had not seen that child since the relationship ended. [ 44 ] Mr. DR feels that he has also bonded well with the second oldest child and the youngest child as well as with the Children. He plays with them, makes crafts with them and takes them shopping. In particular, the youngest child likes to skate. He indicated that he understands and that he is willing to stand in the place of a parent to all of the Mother ’ s children. [ 45 ] When asked why Mr. DR has not read the Father's Affidavits, he said they are of "no merit".

He does not feel that the Mother

will breach any Agreement with him because of the excellent communication between them. He does not anticipate any significant problems with the planned move or with his relationship with the Mother. [ 46 ] Mr. DR indicates that the Mother and he have developed a Parenting Plan. The Father would have the Children on every other weekend and part of the holidays. The Father was not a part of the development of this Parenting Plan. Mr. DR and the Mother have no plans for the Mother to return to work in the near future. The Mother will stay at home and look after the children.

Extracurricular Activities [ 47 ] In his 2008 Affidavit, the Father indicated that he had organized of the Children's extra-curricular activities and regular health care appointments. He arranges and takes them to their dental appointments. Over the years, the Father has ensured that the Children have been enrolled in dance, swimming and music lessons. He has arranged for the music teacher to pick up the Children after school to ensure they make it to their lessons.

The Father indicated that until just recently, he continued to ensure the Children are at their extra-curricular activities as the Children were asked to leave their dance lessons due to their non-attendance during their Mother's parenting time in early 2007. Currently the Children are enrolled in hip hop and figure skating. [ 48 ] The Father usually communicates about the activities via the Children or through a letter tucked in the Children's backpack.

He did not realize there was a concern, but the Mother expressed her unhappiness at the Trial that the Father did not consult with her before he put the Children in the activities. Church and Community Events [ 49 ] The Father is active in the local Catholic diocese. Apparently when the church burned down, the Father arranged a fundraising raffle event.

The Children helped the Father sell tickets for the raffle outside of the local grocery store and seemed happy to be helping in this endeavour. [ 50 ] The Mother has been active in the past in the local Mormon church, but indicates that she is no longer a practicing Mormon. The Mother's Employment [ 51 ] Since the separation, the Mother has had several part-time jobs. The Mother indicated that she wants to be a stay-at-home Mother and in result has only held part-time employment in the summer working for a gravel company, so she could bring her children along.

She has also worked for a local liquor store. [ 52 ] The Mother indicated that her primary source of income had been the Child Tax Credit. In 2010, the Mother obtained employment working at a local Casino working as an entertainment booking agent at an annual salary of $40,485 in 2010.

Although the Mother advises she lost her Casino employment, the Mother subsequently indicated during the Trial that she quit her employment in February 2011 because of a disagreement with her new boss over being asked to perform the work of what was previously two positions, over the long hours and because she wanted to be home more with her Children. She indicated that she has not been looking for employment recently or since then. The Father's Employment

[ 53 ] The Father has worked for Alberta Newsprint Company ("ANC"), for the past 21 ½ years. He has steadily worked his way up in the company and recently switched from the "paper side" to the "pulpside" so that he could obtain his Steam Engineer ticket. He has completed his fourth class power engineering steam ticket. [ 54 ] The Father indicated that the only place he could obtain similar paying employment with the same time off for his Children would be in Fort McMurray.

Although the Father indicated that a "buddy" had offered him a job in "project management" in Calgary, he had no experience in this area, and had no intention of leaving his employment at ANC. [ 55 ] Contrary to the Mother's assertion, the Father says that he has been upfront with his income. In the Father's reply Affidavit of August 12, 2011, the Father disclosed his income in Exhibit E of that Affidavit, and in Exhibit F of that Affidavit, the Childview shows that the Father should have been paying $946 per month in child support, using the income the Mother had disclosed.

It is also submitted that the Mother's income was actually $1,000 more than the amount disclosed in her Affidavit, so there would be a slight adjustment. As stated in the paragraph 41 of the aforementioned Affidavit, in total the Father pays $873 in mortgage, taxes and insurance per month in addition to the majority of the extra expenses. He believes he has been paying the Guideline Amount. Parenting [ 56 ] Both parents expressed that they loved the Children very much, and that is obvious throughout this Trial. The Mother said that she spent a lot of time with the Children doing crafts around the kitchen table.

She said that the Children "are her life".

For obvious reasons, the Mother is excited about the move to S[...] as the Children will have the opportunity to live in a much larger new house, and she will be able to stay at home with them. [ 57 ] B, her mother, indicated that she did not know how the Mother managed the household on so little money, but the Children were always all well fed and were well looked after. [ 58 ] The Father said that he is always doing things with the Children when it is his parenting time whether it is shopping, going to the Children's various extra-curricular activities, or attending school assemblies for information and award ceremonies.

He takes the Children to school and walks them to the door and when it is done, he picks them up. He attends their school activities such as skating and brings along extra skates and mittens for the other children. He indicated that he has a routine for the Children and that one child practices music while the other does her homework or reads with him.

He then gives them a bath and puts them in bed. [ 59 ] Both Parties feel that it is very important that the Children have a good relationship with the other parent. [ 60 ] The Father indicated the importance of the Children being well educated and that he regularly contributes funds into RESPS for them. Mr. DR will obviously be able to financially provide for the Children as well. [ 61 ] HC, the Father's Mother (hereinafter “ HC ” ) described the Father as a "hands on" parent and stated that he pays attention to what the Children were doing at all times.

She mentioned the Father's community and church involvement and said that the Father emphasized the importance of education to his Children. HC indicated how much the Children had missed their Father, even being away from him for this Trial, and how they had made him a large banner for his return. [ 62 ] JG, the Father's sister (hereinafter “ JG ” ) described the Father as well organized and talked about watching him with his girls on the family vacation. She said that the Father was always with the Children, although he tried to carve out alone time for each of them on their vacation.

She indicated that while in Kelowna he helped the Children choose gifts for their siblings and for the Mother. [ 63 ] DC, the Father's aunt (hereinafter “ DC ” ) noted that the Father was a "hands-on" father. She indicated that when they were young at family gatherings, he never expected anyone to look after his Children. He fed them, changed them and held them. She noted

the Father was a very good cook and his home was neat and tidy. She said that the Father was expected to come to her house on special holidays, and they saw each other on special occasions 5 or 6 times a year. DC, who is the Town of W[...]'s acting deputy Mayor, indicated that the Father had spoken to her about entering politics, but when he heard about the time commitment, he said it would take too much time away from the Children and decided that he would wait until they were older. [ 64 ] The Father has had two temporary relationships since 2004.

He says that he did not allow his girlfriends to stay the night when he was parenting the Children. Concerns Over the Move [ 65 ] The Father ’ s sister JG expressed concern over the move, as she felt that the Mother did not supervise the Children enough. She said that on the summer holiday, one of the Children had told the others about an adult horror show that she had watched while she was with her older siblings.

She also indicated another incident of concern had occurred 10 years ago while the Father and Mother were visiting her home. [ 66 ] The Father ’ s mother HC indicated that the Children would miss their Father and had concerns whether he could maintain his employment and still see the Children. She indicated concern over when she would see the Children. She indicated that the Children had told her they knew about the Court and that a decision would be made on Wednesday or Thursday and then they would be moving to S[...]. Apparently, the Children said that "they have family there".

HC said the Children call her "Baba", and she acknowledged that she is not their parent, she is a grandparent. Tony Blenman: The Parenting Expert [ 67 ] Mr. Blenman met with each of the Children four times. He indicated that the girls were anxious and worried about any move to S[...], but there is no direct evidence before me that having their Mother move without them would cause any more or any less anxiety for the Children. [ 68 ] Mr. Blenman found that both Children friendly, connected, easy to talk with. He said that they did not want to make a choice between either parent.

He said that the Children have a family attachment to W[...], particularly to their maternal grandmother. He said that the Children have a very strong attachment to both parents, and did not show any negative feelings towards either parent. He noted that their attachment to their Mother was slightly stronger although the 8 ½ year old noted that she felt "relaxed" when at her dad's home. He noted that the 10 ½ year old mentioned that the Mother had had many boyfriends, but it is not clear whether this included male friends or serious relationships. [ 69 ] Mr.

Blenman expressed some concern over some of the Mother's choice of boyfriends and the Children being exposed to a situation with NT where he apparently locked them out of the Home. Mr. Blenman did not realize the situation described by the 10 ½ year old had occurred in July 2010. [ 70 ] Mr. Blenman noted that the 10 ½ year old considered the second oldest child to be a "role model". When he was advised that the second oldest child had left school for a year, he said that would be negative role modeling. [ 71 ] Mr.

Blenman had inserted a sentence in the report indicating that he felt that the Mother was influencing the Children about the move. He said that the Mother had asked him to remove the statement and he did so because he felt that the Court could "read between the lines". Mr. Blenman felt that certain statements the Children had made about "forgetting" their Mother had been planted in the Children ’ s mind by the Mother. He said that this would not have been a natural thing for the Children to say. Mr.

Blenman however acknowledged that it appeared that both Parties had been talking to the Children about the potential move.

The Transition After the Move [72] If the Father is permitted to keep the Children in W[...], and the Mother moves, the Father has stated that will make everyeffort to facilitate as much access with the Mother as is possible.

The Father's mother HC, who is still relatively young and appears fit,will move to W[...] to help look after the Children while he is working on his shift. [73] Given that youngest child is in kindergarten, it is suggested that the Mother could spend 4 or 5 days at her Mother's at leasttwice a month and perhaps have those times coincide with the two weekends a month that the Father works. [74] The Father feels quite strongly that the Children should not spend their lives being "hotshotted" around the province andspending a lot of time with either parent in vehicles on the highways.

Given the Mother does not intend to work, the Father argues thatthe Mother could drive to W[...] and save the Children from always being on the road. [75] HC would also facilitate extra time with the Children's maternal grandmother as this may lessen the Children missing theirMother’s daily presence. [76] In response to the Father’s characterization of the potential visits by the Children to their Mother’s home in S[...] as“spending their lives being ‘hotshotted’ around the province”, the Mother notes that the Father described his frequent trips with theChildren to visit his mother in Red Deer, his sisters in Calgary, or the family vacation in Kelowna as very enjoyable for the Childrenclaiming they did not experience car sickness but enjoyed playing car bingo, punch buggy and talking during the long car rides. [77] The Mother also argues that the Father’s “plan” for the Mother’s parenting

schedule should she move to S[...] without theChildren does not take her responsibilities to her other children (the second oldest child and the youngest child) into consideration. If theFather believes that Mr. DR works too much, it is submitted that it is troubling that he would consider it to be acceptable for her to leavethe second oldest child on her own for four or five days at a time while the mother goes to W[...].

Likewise given the importance that heplaces on education, it is submitted that it is troubling that the Father would consider it to be acceptable for the youngest child to be outof school for four or five days at a time. While the Mother understands that only two Children are subject to this application, the secondoldest child’s and the youngest child’s well being are very relevant to the well being of the Children at issue. It is submitted that it wouldbe detrimental to the upbringing of the Children if they were taught that it is acceptable to put their interests ahead of the interests of thehalf-siblings.

The Father’s Argument [78] This very matter was considered in Foreman v. Foreman, [2005] A.J. No. 528 in which Justice Slatter stated at para. 10:– Parties in family law disputes are encouraged to settle their differences. If they cannot, they have the right to go to trial and have thematter adjudicated. However, when they settle their differences (whether by agreement or consent order or both), or once they have hadan adjudication, they are not thereafter entitled to re-litigate the issue. As D.J.

Lange states in The Doctrine of Res Judicata in Canada,supra, at p. 313: Notwithstanding the policy and legislative considerations in family law, the common law estoppel doctrines, including the relateddoctrine of abuse of process by re-litigation, are applied in family law. Re-litigation is a frequent occurrence in family law, where thelitigants' emotions often run high but the estoppel doctrines are useful shields and swords to repel these lovers of re-litigation. [79] Both Hearn v. Hearn, 2004 ABQB 75 , [2004] A.J. No. 105 (Alta.

Q.B.) and Foreman concerned mobilityapplications in the face of a separation agreement, or as in Foreman, a case in which the settlement agreement had been put in theConsent Divorce Judgment. In both of these cases, Justice Slatter used the Miglin test to determine whether the agreement should varied.

He stated:– In the context of an application to vary a custody agreement, the Miglin test can be summarized as follows: At the first stage:

a) were there any circumstances surrounding the negotiation of the agreement that would cause the court to discount it?

b) does the substance of the agreement substantially comply with the best interests of the children; At the second stage

a) Does the agreement still reflect the intentions of the parties?

b) Have any unforeseen changes in circumstances undermined the parties' agreement?

c) Given such changes, is the agreement still in substantial compliance with the best interests of the children? Even if some changeis warranted, the agreement can still give some indication of the expectations of the parties about the best interests of the children. The First Stage of the Miglin v. Miglin Test A. Were There Any Circumstances Surrounding the Negotiation of the Agreement That Would Cause the Court to DiscountIt? [80] In Tardif v. Campbell, 2008 ABQB 776, 63 R.F.L. (6th) 220, Erb J. stated at para. 26:– ...

Generally speaking, the right of contracting parties to make agreements whether advantageous or not is well established.

Unless it canbe shown that one party took advantage of the other by duress or undue influence or concealed facts which would have made a differenceto the decision, private agreements are generally upheld. [81] The Courts have also approached the emotionally charged nature of agreements in the context of separation with a carefulrecognition that the examination of the circumstances of the decision by the parties must be in the moment of agreement, not as theparties currently have positioned themselves. Madame Justice Coutu as quoted from Grant v.

Jovic, 2005 ABQB 323 at paras. 47-48(cited with approval in Dickieson v. Dickieson, 2011 ABQB 202 , [2011] A.J. 365 (Alta. Q.B.) at para. 18) stated thefollowing:– Justice affects both parties and requires a balancing of their interests. The fact that the settlement agreement may not have been adesirable one from the point of view of the defaulting party, or the fact that they may have received poor advice from their lawyer, or thefact that they later changed their minds, cannot provide grounds for setting aside the settlement agreement, or a refusal to enforce it.

[ 82 ] In the recent decision of Dickieson Justice Browne dealt with a separation agreement in which the wife indicated there had been undue influence on the part of the husband. The test for determining the same, as set out in Roenisch v. Bangs (as quoted in Dickieson at para. 22 ) is as follows: – a. Whether the person alleged to have been coerced, protested; b. Whether, at the time he or she was allegedly coerced into making the contract, he or she had an alternative course open to him such as an adequate legal remedy; c. Whether he or she was independently advised; and d.

Whether after entering the contract, he or she took steps to avoid it. [ 83 ] In Dickieson , the Defendant Father had actually stated to the mother at paras. 29 and 48 "that if she asked for money, she and kids would be out on the street". The Court found that alone was not enough, because the mother had independent legal advice. [ 84 ] The Mother had the choice of going to Court and seeking specific performance of the First Agreement. She was represented by capable legal counsel. The parties chose to settle their matter by way of negotiation. They met for a settlement meeting.

The Mother viewed the property four times. Over the course of 8 months, they negotiated a solution. [ 85 ] The wife did have capable independent legal advice, however, she chose not to call her lawyer as a witness. As Justice Browne stated in Dickieson at para. 37 : – The wife's lawyer was not called as a witness, and the parties argued about who should be required to call him. I agree with the husband's lawyer that the wife had the obligation to waive privilege and call the lawyer if she wished to avoid the agreement. She did not.

At the commencement of the husband's case, the wife, on the record, waived her privilege regarding her dealings with the lawyer and invited the husband to call the lawyer. The wife's present lawyer wished to have the opportunity to cross-examine the lawyer who signed the agreement rather than calling him as a witness in-chief. In my view, the documents signed by the lawyer speak for themselves and the onus was on the wife to rebut them.

It was not up to the husband to do so. [ 86 ] With respect to the last leg of the Roenisch test, the Wife substantially complied with the Second Agreement until July 2010, when she moved in with NT. The "breach" lasted for a month. Arguably, the breach of the Second Agreement was that the Mother did not first ask the Father to look after the Children. Instead, she asked NT. The Mother had kept the terms of the mobility clauses in the First and Second Agreement between April of 2005 - February 2011.

The second breach of the Second Agreement (by the Wife) was that the Wife refused to take the Lis Pendens off of the Father's home and forced the Father to bring an application for the same. However, she did eventually followed through and removed the Lis Pendens. [ 87 ] As Justice Slatter stated in Foreman, at para. 14: – To the extent that the Defendant is now seeking to vary the agreement, she has not met the test set out in Hearn . To consider the first stage both the parties were represented by capable counsel at the time of the negotiation of the Minutes of Settlement.

While the Defendant now complains that she was under some pressure to settle because she wished to remarry, and because of the emotional turmoil of the separation, this is nothing more than rationalizing on her part. The circumstances in which the parties found themselves were no different than those facing most separated couples. If settlement agreements were set aside on such flimsy grounds, no settlement agreement would ever be safe. [ 88 ] It is submitted that there was no undue influence or duress. The Mother has not established that she did not know what she was signing or that she signed involuntarily. B.

Does the Substance of the Agreement Substantially Comply with the Best Interests of the Children?

[ 89 ] It is submitted that that the original intentions of the Parties are reflected within the agreements. The circumstances in the present were clearly contemplated by the parties, as shown by the very existence of the prohibition clause in the agreements. The circumstances were clearly anticipated, as the parties saw fit to include the clause. If the parties did not envision one of the parties attempting to move the Children out of W[...], then they would not have included the clause.

The presence of the clause means that the parties had turned their mind to this circumstance and deemed the prohibition clause to be acceptable as a solution to this concern. This was the parties' intention, and the Children have thrived under the arrangement. The Second Stage of the Miglin v. Miglin Test A. Does the Agreement Still Reflect the Intentions of the Parties? [ 90 ] As Justice Slatter stated in Foreman at para. 16: – The "intention" for this purpose is the intention set out in the agreement.

This part of a test requires the Court to examine whether circumstances have arisen that could not have been contemplated, and there are no such circumstances. [ 91 ] It was the parties' intention to raise the Children in a shared parenting arrangement in W[...] until the Children graduated from high school as per the Agreement. B. Have Any Unforeseen Changes in Circumstances Undermined the Parties' Agreement? [ 92 ] During the Trial, the Mother alluded to five unforseen changes of circumstances: –

a) Her loss of employment and inability to find work in the W[...] area;

b) Her meeting Mr. DR on the internet and needing to move to S[...] to be with him;

c) Her ability to stay at home with the Children;

d) The Unsuitability of the Mobile Home;

e) The Father's Breach of the Second Agreement.

a) Employment [ 93 ] In the Trial it became clear that the Mother did not lose her employment, she quit her employment because of conflict at work. The Mother presented no evidence that she was looking for alternate employment, in fact she clearly said that she wanted to stay at home, although the youngest child will turn 6 years old this Boxing Day.

[ 94 ] The Mother has lived in W[...] for a long time. She knew about the employment opportunities when she entered into the Second Agreement in 2009, and she presumably knew about economic downturns. The Mother cannot now say that it was unforeseen that she could not find employment that would fit the Father's work

schedule when it is the same work

schedule it has always been.

b) Meeting Mr. DR on the Internet [ 95 ] The Mother has dated men outside of W[...] prior to the signing of the Second Agreement, as is evident from her relationship with DC, the Mother met the man on the internet, who came from Texas and married her. She knew he had to stay in W[...] to comply with the Agreement. [ 96 ] In Gordon v. Towell , [2010] A.J. No. 676 , at para. 33 , the Court found that "the Mother should not be able to rely upon a change she created". [ 97 ] The Mother knew when she communicated with Mr. DR on the dating site that she had an obligation to her Children to remain in W[...].

c) Staying At Home Full Time [ 98 ] Despite economic constraints and hardship, the Mother has chosen to stay at home with the Children. With the exception of the [...] Casino job, the Mother has not worked full time. The Mother was not working (or was working very little), when she entered both the First and Second Agreement. The Mother has not worked for the last 10 months and has been a stay at home Mom. Her youngest child will be 6 years of age soon. This is not an unforeseen circumstance.

d) The Condition of the Mobile Home [ 99 ] The Mother provided no expert evidence with respect to the condition of the Mobile Home. In any event, the Mother specifically stated in the Second Agreement that: "The Mobile Home is acceptable to the MOTHER upon the condition the kitchen is renovated". She cannot now complain about the rest of the Mobile Home and say that she had no idea of the state of the Mobile Home when she expressly agreed that it was acceptable. The fact that the Mobile Home was older and would require upkeep was known when the Mother insisted on owning a property instead of renting a property.

The Mother chose the property, insisting that she had to view the property four times before she finally agreed. The Mother did not obtain an inspection. That was her choice, and problems she is now experiencing with the Mobile Home are in line with one would expect to experience with an older Mobile Home, and hence could have been foreseen.

e) Breach of the Second Agreement [ 100 ] The Father was not obligated to pay any money for the renovation of the kitchen until May 2010. The disagreement over money had to have occurred in July 2009, because in July 2010, the Mother was by her own admission, living with Mr. Tally. The Father has now recently paid the $4,000, albeit the money was paid late just before this Trial. However the Mother was also late in removing the Lis Pendens and the Mother's request to move to S[...] followed almost immediately. The Father says he realized he was going to have to foot expensive legal fees to try and fight the Mother's move.

[ 101 ] The Mother had never formally brought any application for the $4,000 and did not do so in July 2011, when she filed her application to move with the Children. It is submitted that the $4,000 was not a substantial concern and cannot be used to "invalidate" the entire Second Agreement. [ 102 ] The Second Agreement also contained a severability clause. This means that the custody and parenting provisions of the Agreement are severable, and if one clause is "unenforceable" it does not affect the enforceability of the remainder of the clauses, as explained in Yawney v.

Jehring , [2006] B.C.J. 1682 (B.C.S.C.) , where the Court found at para. 53 that: – In a contract without a severability clause, it may be plausible to argue that each clause is dependant on the others, in the sense that the parties agreed to a package which cannot be changed piecemeal. But here, Mr. Jehring and Ms. Yawney specifically agreed in clause 4 that such was not the case. Having agreed, on the basis of legal advice, that if any clause of the contract was unenforceable the remainder would not be affected, it is not open to Mr.

Jehring to argue that because clause 31 is unenforceable, he should be relieved of his obligations under clause 26. The trial judge erred in acceding to that argument. C. Given Such Changes, Is the Agreement Still in Substantial Compliance with the Best Interests of the Children?

Even If Some Change Is Warranted, the Agreement Can Still Give Some Indication of the Expectations of the Parties about the Best Interests of the Children. [ 103 ] The final leg of the second stage of the Miglin test requires the Court to consider if the Agreement that the Children remain in W[...], with or without their mother, is still in the Children's best interests. In Foreman at para. 17, Justice Slatter considered the Mother returning to Regina and the children remaining in Edmonton, he stated: – It is not contrary to the interests of the children that they remain in Edmonton with their father.

This is particularly so when one considers the importance of allowing litigants to settle their own differences, and the importance of the Court enforcing settlements so achieved. To the extent that the Defendant is seeking to vary the Minutes of Settlement, she has not met the test. [ 104 ] Madame Justice L'Heureux Dube of the Supreme Court of Canada as quoted in para. 24 of Hearn v. Hearn , stated : – Parental agreements should be the rule and must be encouraged since parents are generally in the best position to assess the best interests of the child.

In addition, such agreements minimize ongoing parental conflict and litigation, which are clearly not in the best interests of children. Research on the emotional impact on children of such conflicts, notwithstanding its limits, widely supports this common sense observation. The Gordon v. Goertz Test [ 105 ] Alternatively, should this Court decide that Miglin v. Miglin does not apply to the case at hand, the seminal case of Gordon v. Goertz should be applied.

It is suggested that based on the existing shared parenting regime that the Children are currently thriving under, all of the factors laid out in Gordon do not apply to the circumstances here. Gordon dealt with a mobility case where one parent was an access parent and as such, there was a different degree of relationship with their child's day to day life. [ 106 ] First, the Court must determine whether or not there has been a material change of circumstances.

Arguably, there has not been a material change of circumstances that was not contemplated at the time of signing of the Agreement, but should the Court consider this as a change, it then must consider the factors as set out below: –

a) The Existing Custody Arrangement and Relationship Between the Child and the Custodial Parent

[ 107 ] Given this is a shared custody/parenting arrangement, both parents share this role with the Children. Mr. Blenman indicated that the Children have a strong bond with both parents, although it is slightly stronger with the Mother.

It should be noted though that the 10 ½ year old expressed concern over her mother's many boyfriends and concern that she would end up in a bad relationship again and the 8 ½ year old mentioned that it was more "relaxed" when she was with her Father. [ 108 ] The above said, with respect to the existing relationship between the Children and the Father, the testimony and affidavits put before the Court clearly demonstrate that the Father is an integral part of the lives of the Children.

The Father has shown a deep connection to his Children, and an ability to place the needs of the Children before his own. [ 109 ] The Father indicates that every moment he has the Children during his time, he spends with them. If the Children do an activity, he makes sure he is involved. He has ensured that he has enrolled the Children in and participated in the Children's extra-curricular activities and their schooling. It is their Father who has made and taken the Children to all of their dental and medical appointments.

b) The Existing Access Arrangement and the Relationship Between the Child and the Access Parent [ 110 ] In this situation, there is no access parent, so this criteria would not apply.

c) The Desirability of Maximizing Contact Between the Child and Both Parents [ 111 ] The principle of maximum contact as laid out both in the Miglin test and in the Divorce Act strongly points the Court toward preserving the relationship that the Children have with the Father. The Court must always place this requirement within the context of the best interests of the Children, but no principle of law holds that maximum contact and the best interests of the Children are mutually exclusive propositions.

In this case, the best interests of the Children and the principle of maximum contact are in perfect harmony with each other. [ 112 ] It would be almost impossible for the Father to "maximize contact" with the Children when every time he wishes to see the Children, he will face an 11 hour drive. Further, he will be forced to spend a night with his sister in Calgary, which according his sister JG is an additional 40 minute trip from S[...] - each way. His access will be reduced to every other weekend. As mentioned, there are approximately 31 waking hours in the weekend.

At least 11 of those, possibly 13, will be spent driving with the Children, if they want to visit the only home they have ever known in W[...]. How could that possibly be in the Children's best interests to spend their weekends driving? Very quickly, the Children will tire of the driving and seek to stay in one location, effectively restricting the relationship with one of their parents, despite the fact that both of their parents have been so pivotal in their lives to this point.

d) The Views of the Child [ 113 ] It is suggested that the views of the Children as have been articulated lately should be accorded little weight in this matter, particularly in light of Mr. Blenman's statements about the Mother influencing the Children. It is however concerning that the Children are both exhibiting high levels of anxiety with respect to the move. They are worried about moving from the community they have always known. They are worried about leaving their Father. [ 114 ] In Bablitz v.

Park , October 7, 2011 Unreported p. 12 line 26-13 line 3, Justice Germain stated in obiter to the parents: – let me give -a real good insight here. One of the hardest types of cases that we have to decide is these mobility cases and where there often are third party counselors that find out that the parents or the guardians are chitter-chattering to the children about parent issues and

where they are going to live. We don't like that, and react badly to it. The quickest way I know to prejudice your court case is to talk to kids about these adult decisions. Children don't even get to decide what shows they go to. They should not get to decide what locations they go to. There is to be no communication with the children about the matters of their custody, care, and parenting. ...The comment to the children should be, You know, we're going to work it out amongst us adults if there is any more of that conduct, it will deeply prejudice the person who has made that conduct. So it is their risk.

It is not the Court's risk. [ 115 ] In C.S. v. F.L , [2010] A.J. No. 503, (Alta.Q.B.) , Justice Sullivan considered the views of a 13 year (T.S.) and a 10 year old (J.S.). The Court stated at para. 46: – T.S.'s indifference and J.S.'s comments regarding the proposed move demonstrate the inherent conflict children are placed in when forced to choose between people who love them. A move of this magnitude will invariably create a mix of emotions for the children as they are excited, confused, and saddened all at the same time. They simply want Mr. and Ms. to be happy.

It is therefore inherently risky to rely on their views, particularly when the child expresses his or her desires in terms of what will make their parents happy, as J.S. has done. Therefore, the views expressed by the children do not factor into this decision. [ 116 ] The Father ’ s position is that the Children should not have been involved from the outset, and their views should be accorded little, if any weight now.

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 [ 117 ] In Gordon v. Goertz , the Court stated at para. 22 (as quoted in Zukiwsky v. Zukiwsky , [2010] A.J. No. 639 (Alta. Q.B.) at para. 20 ): – Usually, the reasons or motives for moving will not be relevant to the custodial parent's parenting ability.

Occasionally, however, the motive 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. [ 118 ] In Zukiwsky , the Mother wished to ostensibly relocate to Kamloops for her education; however, it was apparent that she was involved in a long-distance relationship with a man who lived in Kamloops as well.

Justice Marceau stated at. para. 17: – In my view, an improper motive is not restricted to cases where the real reason for the move is to destroy the non-custodial parent's access, but it can also be founded upon the finding, which I make in this case, that a serious disruption in the father's access without a compelling reason for the move can be characterized as an improper motive. [ 119 ] Justice Marceau went on to expressly find at para. 21 that this move was not "necessary".

He stated: – It seems to me that where the result of the relocation is effectively to place a major distance between the non-custodial parent and the children, one must take judicial notice that prominent psychiatrists and psychologists and the case law all indicate that in early childhood the relationship with a parent requires frequent contact.

f) Disruption to the Child of a Change in Custody

[ 120 ] The stability of the Children is a primary factor in considering the disruption to the Children consequent to a move. Even if the new relationship that the Mother has embarked on is a success, the Children will have to deal with a new house, new rules and a new man in the Mother's life. The Father points out that the Mother's success with relationships in the past has been dismal. The Mother has a long history of rushing into relationships that end badly.

It was troubling that the Mother or for that matter, her mother B did not seem to have the capacity to see that this kind of rushing into relationships, particularly where young children are involved, can have disastrous consequences. This will be at least the fourth relationship that these Children have had to go through with their Mother. Understandably, they are apprehensive. So too, is the Father. [ 121 ] In P.J.H. v. M.M.H ., [2010] A.J. No. 769 (Alta.

Q.B.) at para. 41 the Court found in an almost analogous situation that: – ... the circumstances that they are going to in my view are too uncertain to provide them with the stability they need. The plan in my view is unrealistic. This may turn out to be the perfect relationship for the wife but at this stage, the history of her previous relationships and her children from those relationships cause the court concern. The children would be moving into a home with a stranger in a new city where they know no one. ...

Their father who they see all the time would all of a sudden be gone. [ 122 ] The Mother suggests that she will be able to stay at home to look after the Children as Mr. DR has agreed to support both her and the Children. She has even made plans, albeit tentative, that if the relationship ends she will be able to stay in the house for a year and receive financial support for 6 months. However, the Father argues that after 6 months, the family could be without support again, alone and adrift in a strange community. [ 123 ] In D.A.W. v. M.J.W ., [2005] A.J. No. 1820 (Alta.

Q.B.) at paras. 10 and 11 , Justice Binder said that when a shared parenting arrangement was working well and "where the child's time with each parent is maximized [it] is generally in the best interests of the child". The Court further considered that the Mother would be a "stay-at-home" mom: – The Applicant submitted that given that both parents are equally caring and competent, the move would be in J.'s best interests thereby "tipping the balance" because she would have the benefit of a stay-at-home mother as opposed to spending her days in daycare.

I find however, that this factor is not persuasive as J. will be attending Kindergarten full time next year, following which she will be in grade school. Accordingly, the bulk of her days will be spent in school as opposed to at home or in daycare. [ 124 ] In Foreman v. Foreman , 2004 ABQB 694 (Alta. Q.B.) Justice Read stated at para. 27: – Until this couple determines whether their relationship will be stable and long lasting, it seems risky to subject children to a situation where the adults are still seeking to adapt to each other.

It will give them less time and energy to devote to helping the children with the very considerable adaptation required by them to all of the changes such a move would entail. Further, to the extent that the mother's new relationship is not stable, I would put the children at risk of having to move and adapt yet again if the new relationship breaks down. The mother will also have to put time and energy into re-establishing herself in a job and this will also detract from her ability to help the children to adapt to their new situation.

Finally, the move as contemplated by the mother would significantly impair the access of the father to the children and the ongoing relationship between the father and the children. [ 125 ] Interestingly, in Foreman v. Foreman the mother had been relatively stable in the past. She had had one relationship. Still the Court found that subjecting the children to a new situation involving a new man was not in the children's best interests. [ 126 ] Similarly, the Mother is relying on Mr. DR to look after the five of them without any financial assistance from the Mother.

What would happen if there was a significant downturn in the economy or if the relationship ends? [ 127 ] Once again, in P.J.H v. M.M.H at para. 42, the Court's direction is particularly on point: – The Wife is relying on someone else to take care of her financially. This is a large burden for anyone even with the child support paid by the husband. If this does not work out, the children are again looking to move to another unknown situation. The wife has no intention of

looking for work or starting education courses for at least a year. Her ability to care for herself and the children if need be iscompromised. [128] The opposite situation is discussed in Adams v. Wyatt, 2007 ABQB 667 (Alta. Q.B.) at para. 49, in which the Mother hadtaken steps to find secure employment with third parties in her new location. The Court found that she had "demonstrated that abreakdown in her relationship will not mean a move from her current job, nor for Kelton from his friends or his school". The Mother inthis situation has taken no such steps.

Instead she has placed herself again in a position of dependency. [129] It should be noted that both of the aforementioned cases were cases in which the parties did not share parenting and in whichthe Mother had the primary parenting. [130] In actuality, the Court should carefully consider the Mother's move to S[...], without the presence of Mr. DR, given that is adistinct possibly. This particular matter was considered in Van de Perre v. Edwards, 2001 SCC 60 , [2001] 2 S.C.R. 1014,[2001] S.C.J.

No. 60, (S.C.C.) paras. 25-32, where our Supreme Court stated:– ... [T]he negative and positive traits and influences of step-parents must be considered. This being said, there is a distinction betweentaking a step-parent into consideration to determine the family unit in which the child would live it that biological parent were awardedcustody and taking a step-parent into consideration to determine if his or her positive qualities are sufficient to override the negativequalities of his or her custody-seeking spouse. and Atrial judge cannot give custody to a father merely because his wife is a good mother.

Her presence is a factor, but overall, the courtmust consider if the applicant would make a father in her absence.... it is Mr. Edwards' personal capacity to exercise custody that must beconsidered... [131] In this matter, it is clear that someone else will be supporting the Children, not the Mother. The Mother having custody of theChildren in S[...] without Mr. DR's financial contribution could not even be remotely considered. Therefore, it is suggested that the Courtmust carefully consider if the Mother could effectively parent without Mr. DR's financial assistance or support in S[...].

g) Disruption to the Child Consequent on Removal from Family, Schools, and the Community He or She Has Come toKnow [132] W[...] is where the Children call home. They have their best friends there. Their Father is known by the teachers and friendsat school (one would suspect the same with the Mother, although there was no evidence of that presented). [133] The Children have been involved in the church and the community. They are involved in their extracurricular activities. [134] The Children are particularly attached to their maternal grandmother who lives in W[...].

She has been an integral part of hergrandchildren's lives, and clearly loves them very much. [135] In the recent Court of Appeal decision of P.O.T. v. B.E.M, 2010 ABCA 22, the Court upheld the trial Judge's decision at para.5 and the Court refused to allow a Mother to move to Montreal from Alberta for work reasons, as follows:–

He reviewed the evidence thoroughly and found that the children had daily contact with both parents, that the appellant's proposed access regime was unrealistic, and that the relocation would significantly alter the contact between the respondent and the children. Moreover, the move would take them "from the community where they have resided since birth, the school they presently attend, their friends, and their extra-curricular activities." On the other hand, the trial judge considered that the appellant's desire to move was "driven more by emotion than careful reasoning".

In the final analysis he found the proposed move was not in the best interests of the children. [ 136 ] Similarly, in the recent decision of C.S. v. E.L. [2010] A.J. No. 503 para. 58 , the Court found that: – I base this decision on the following factors. Notwithstanding Ms. has always had primary control of the children, and she makes the custodial decisions for the children. To order the children remain in Alberta with Mr. Should Ms. move to Saskatoon would be less disruptive to the children than if they move. In either arrangement the children would still have to switch friends and community.

In addition having to adjust to a new primary giver Ms.'s boyfriend. The fact that Ms. has not made concrete plans is troubling. The future with the boyfriend in his apartment is fraught with difficulty. Mr. and his wife whom the children love are able and willing to provide a stable environment, emotionally, financially and with community continuity. Therefore, I find the children must remain with Mr. when Ms. moves. [ 137 ] It is submitted that the application of the Gordon v.

Goertz test shows on a balance of probabilities that the Children's best interests are looked after best by remaining in W[...] with their Mother, if their Father moves. The Family Law Act [ 138 ] Should the Court find none of the aforementioned reasons compelling for prohibiting the Mother's move with the Children, is the legislation. In our view, this matter would be governed by ss. 18 and 19 of the Family Law Act as set out below. [ 139 ] In determining what is in the best interests of a child, the court shall: –

a) Ensure the Greatest Possible Protection of the Child's Physical, Psychological and Emotional Safety [ 140 ] Mr. Blenman raised concerns that this had not been the case in the situation described by one of the Children in which her Mother's boyfriend "had been mean to her" and "she had been locked out of the home". Mr. Blenman expressed greater concern when he heard that this situation had occurred in July of 2010. [ 141 ] At least in the aforementioned situation, the Children knew that they would soon be returned to their Father, for his parenting shift.

However, if the Children move to S[...], there is no such assurance, as their Father would see them every other week, at the most. There is no one there to protect them if something goes wrong. The Father is no longer 5 minutes away.

b) Consider All the Child's Needs and Circumstances, Including (

i) the child's physical, psychological and emotional needs, including the child's need for stability, taking into consideration the child's age and stage of development,... [ 142 ] These Children are at a crucial age. They have been subjected to enough instability in their short lives. The last thing they need before entering into their teen years is to have to try and fit in with a new group of friends, community and possibly a church. They have to rely on their Mother, who has typically not been the one to get them involved, to do so. The Children have the right to be stable

and happy in a place that has always been home. (ii) the history of care for the child, (iii) the child's cultural, linguistic, religious and spiritual upbringing and heritage, (iv) the child's views and preferences, to the extent that it is appropriate to ascertain them, (

v) any plans proposed for the child's care and upbringing, [ 143 ] Given many of the aforementioned factors have been mentioned above in Gordon v. Goertz factors, they will not be readdressed. The Father has focused on the Children's education and wishes them to pursue post high school studies. He has been putting away money for this purpose. He has a plan for their future. (vi) any family violence, including its impact on (

A) the safety of the child and other family and household members, (

B) the child's general well-being, (

C) the ability of the person who engaged in the family violence to care for and meet the needs of the child, [ 144 ] It is arguable that any family violence between the parties that is alleged to have occurred between these parties (if it actually did) would be remembered by the Children. The Father was never convicted for whatever occurred, although the Mother did try. Although the parties have not always got along well, there has never been another incident. It is suggested that the aforementioned is not a factor. (

D) the appropriateness of making an order that would require the guardians to cooperate on issues affecting the child, [ 145 ] The end result of the Mother's allegations of violence was that the Father entered into a peace bond, which in turn resulted in the end of the criminal matter. As this Court noted in Klebanowski v. Fischer , [2008] A.J.

No. 1201 at para.13: – The fact that the Respondent entered into a Peace Bond also does not necessarily mean that he was guilty of assault in the first place, something that he continues to deny. [ 146 ] It is suggested that the parties have cooperated reasonably well in the parallel parenting regime they have established, however should there be a move by the Mother without the Children, the Father and his Mother HC have indicated a willingness to cooperate with the maternal grandparents in facilitating access. [ 147 ] It appears that if the Mother moves, there is going to be a lot of driving, whether the Children stay or go.

It is unclear how the parties can cooperate further than effectively making the Father an "every other weekend parent". [ 148 ] If the Children stay, given the youngest child is in kindergarten, the Mother should have the flexibility to make frequent long weekend trips to W[...]. She would have the ability to stay with her Mother. This would allow longer periods of access with the Children. If possible, these trips should be arranged so that they coincide with the Father's work schedule, so that HC could visit her other grandchildren.

(vii) the nature, strength and stability of the relationship (

A) between the child and each person residing in the child's household and any other significant person in the child's life [ 149 ] In this section, clearly the Children's relationship with both the youngest child and the second oldest child are factors. However the second oldest child has two more years (and if the move does not occur until September 2012, it will be just one year) before she reaches adulthood and hopefully will be able to move forward with her own life. It is questionable whether she is in fact, a positive role model for the 10 ½ year old, who looks up to her.

With respect to the youngest child, the Children could see him often when his Mother brings him to W[...]. Hopefully, his Mother would allow him to spend part of his vacations and his summer holidays with his grandparents in W[...]. If this is the case, the Father and HC would be willing to facilitate access with the Children's brother. [ 150 ] In the recent decision of C.G.R. v. S.D.W. , [2011] A.J. No. 1241 (Alta. Q.B.) the parents had shared custody in Fort McMurray. The children were ages 7 and 5.

Although the Court did allow the Mother to move to Edmonton on a without prejudice basis for one year with her new partner, the Court ultimately found that the children needed to be returned to Fort McMurray to be with their Father. The Mother had re-partnered, and had another child, with one more child on the way. The Mother had wished to raise these two children with the children from her new relationship.

At para. 45, the Court found, "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." [ 151 ] Conversely, it is submitted that there are concerns about the Mother's older children. One child, who did not finish school and was now in trouble with the law, had been asked to leave the home. The second oldest child who was already been put back one year when she was younger, stopped attending school for a year when she was 15, and tried distance learning successfully as it turns out.

In result, although she is back in school now, she is further behind. She is 17 years old. The Father is concerned about the priority that the Mother places on education. The Mother ’ s Argument [ 152 ] It is the Mother ’ s position that Hearn v. Hearn is wrong in law or, in the alternative, does not apply to parenting decisions under the Family Law Act of Alberta . The only obligation of the Court is to determine the best interests of the child having regard to the factors set out in

Section 18 of the Family Law Act . However in the event that the Court concludes that the Miglin test as described by Justice Slatter in Hearn v. Hearn , applies to this situation, the Applicant submits that the Respondent ’ s application of the Miglin test to the Legault-Chartrand case is faulty. [ 153 ] The Mother ’ s position is that there were circumstances surrounding the negotiation of the agreement that should cause the court to discount it. Although references to other cases can be helpful, every case must be decided on its own merits. In Dickieson v.

Dickieson , the wife applied to set aside the agreement on the grounds of undue influence, unconscionability, and failure by the husband to make full and frank financial disclosure to her. Quoting from Miglin , the Court stated: – a. where, therefore "there were any circumstances of oppression, pressure, or other vulnerabilities", and if one party's exploitation of such vulnerabilities du

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