N. M. v. C. K., 2012 ABQB 388

Court of Queen ’ s Bench of Alberta Citation: N. M. v. C. K., 2012 ABQB 388 Date: 20120613 Docket: FL01 12118 Registry: Calgary Between: N. M. Plaintiff - and - C. K. Defendant 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 Madam Justice C.S. Phillips _______________________________________________________ I.

Introduction [ 1 ] The issue in this hearing relates to custody and access, specifically I am faced with the difficult decision of determining whether it is in the best interests of the child to permit relocation from her hometown of Airdrie, Alberta to Orangeville with her mother.

The mother has already relocated and pursuant to an interim order, the child is currently spending 15 days with her mother and family in Orangeville and 15 days with her father in Airdrie. [ 2 ] The father opposes the move of the child from Airdrie to Orangeville on the basis that the proposed move is not in the child’s best interests. II. Background [ 3 ] By way of general background, the parties met during Stampede in August 2004 and subsequently worked as co-workers at Melrose Café and Bar.

They became friends and started dating in April 2005 and in January 2006, the mother discovered she was pregnant. [ 4 ] The relationship prior to the pregnancy was unstable and neither intended to remain in the relationship, however, subsequent to the pregnancy they committed to try and make the relationship a successful one. The child was born on September 5, 2006.

The relationship continued to be unstable and they separated in March 2008, however the mother continued to reside in the home with the child and father until May 2008. [ 5 ] For the majority of the relationship, the father was a manager at the Melrose Café and Bar and the mother worked as a server at the same restaurant. After they separated, the father continued working for Melrose Café and Bar and continues to be employed in the hospitality industry, although he is no longer employed at Melrose.

He is currently enrolled in a General Manager Program at Moxie’s. [ 6 ] The mother has worked for WestJet for four and half years. She started as a flight attendant with them in September 2010. She is currently on maternity leave. She plans to return as a part time flight attendant at the end of her maternity leave. [ 7 ] The mother started dating her current husband in April 2008 and they were married in September 2010.

In November 2011 the mother gave birth to her second child, a girl. [ 8 ] In April 2011, the mother contacted the father to say that her husband had received a promotion and that they had already purchased a home in Orangeville. At that time, her husband’s promotion saw him remaining in Calgary for four days each week to fulfill his employment obligations. In fact, at the time of the Assessment, done by Ms. Ailon, he expressed hope that he would find work in Toronto. He has since obtained a position in the Toronto office for WestJet and no longer commutes to Calgary.

They relocated to Orangeville in June 2011. [ 9 ] The mother’s employment with WestJet in Calgary is as a flight attendant and her home base is now Toronto. She is currently on maternity leave until November 10, 2012 and is planning to return to WestJet part time which is the equivalent of approximately eight days per month or a minimum of 50 hours per month. [ 10 ] Since the parties’ separation, they have had shared parenting of their daughter. They went to mediation and obtained a Consent Final Parenting Order in provincial court on December 16, 2008. Initially, they had a daily

schedule where they both saw the child. Once they realized that this was not ideal for the child, they changed it to a three day schedule. [ 11 ] While the child resided in Airdrie, on a full time basis, she attended a day home in Airdrie, Alberta that both parents used when they were working. [ 12 ] Currently, in accordance with the order of Justice Park granted on June 17, 2011, the child is travelling between Orangeville, Ontario and Airdrie every 15 days. She is attending kindergarten both in Orangeville and in Airdrie.

[ 13 ] Since the completion of the evidence at trial, the father’s lawyer sent a letter dated June 1, 2012, together with an employment contract of the same date, advising that the father has been offered and accepted a position as a Payroll Administrator with Moxie’s Restaurants in their head office. The father’s lawyer advises in the letter that the work hours are 9:00 am to 5:00 pm (the contract outlines hours of 8:30 am to 5:00 pm), Monday through Friday. This position is effective June 16, 2012. III.

Orders [ 14 ] The parties signed a Consent Final Parenting Order before ACJ Tousingant on December 16, 2008 (“Consent Final Parenting Order”) which stated: 1. The parents shall have parenting time with and responsibility for the child in a 50% shared parenting

schedule as mutually agreed. 2. The parents shall not permanently remove the child from Airdrie or the City of Calgary, without prior Court Order, or the written consent of the other parent. [ 15 ] On May 17, 2011, Justice Park gave the following order, which provided, inter alia : 7. On an interim basis, the parenting

schedule with [M.] shall be a 15 day rotation commencing with the Father on May 17, 2011, and then 15 days with the Mother. IV. Issues 1. Is it in the child’s best interest to relocate to Orangeville, Ontario on a permanent basis? 2. If this is answered affirmatively, how will the parenting time be scheduled presently through the summer of 2012, and after the school year commences in September 2012 in the event that the child permanently remains in Orangeville, Ontario? V. Position of the parties Mother ’s position [ 16 ] The mother was born in Thunder Bay, Ontario and is currently 36 years of age.

She relocated to Calgary at the age of 25 as a result of an employment opportunity. She lived in Calgary and then Airdrie for a total of ten years before relocating back to Orangeville, Ontario in June of 2011 with her husband. She now has a second child with her husband.

The mother submits that her two children have a very close sibling relationship which makes it difficult for the child to leave Orangeville every two weeks for the parenting period in Airdrie. [ 17 ] The mother claims to have relocated to Orangeville to be closer to both her family and her husband’s family to purportedly seek a stronger support system. Her parents, sister, as well as numerous aunts, uncles and family members all live in Thunder Bay. Some of her husband’s relatives including his mother and her husband, his sister and brother all live in Guelph. He also has relatives in Collingwood.

Again, he has no immediate family living in Orangeville. His father and step mother live in Calgary. He also has a brother and wife that live in Calgary. [ 18 ] The mother contends that the cost of living and the quality of life is qualitatively better in Orangeville than in Airdrie. In the

mother’s opinion, the child would benefit from the move having a “strong support unit, having a good community, having a good school, having happy parents, having lots of lots of things - a good education, still has access with her dad.” [ 19 ] The mother has stated that she will endeavour to ensure that the child sees her father regularly and has offered to contribute to his access through airline “buddy” passes that she and her husband receive through work. [ 20 ] Further, the mother submits that once her maternity leave ends, she plans to work part time which is the equivalent of approximately eight days per month (i.e. a minimum of 50 hours per month), giving her the flexibility to be at home more with the child and her half sister.

The mother submits that she chose to pursue her career as a flight attendant in order to allow for this increased flexibility and the luxury of discounted transportation through WestJet, which makes the parenting arrangement that is currently in place possible. [ 21 ] The mother contends that during the child’s infant years, she was the primary caregiver for her and stayed home with her for the first 14 months of her life. The mother attended to all medical and dental appointments.

She did all of this so as to ensure that the child was in a good environment when she did return to work. [ 22 ] The mother submits that throughout the course of their relationship, the father was an assistant manager of Melrose Café and Bar and was unemployed for a period of time in late December 2011 and January 2012. He commenced work as a manager in February 2012 at Moxie’s Restaurant.

The mother submits that the father works variable shifts and at times has to commence his work very early in the morning or alternatively, he must stay very late at night. [ 23 ] After the parties separated, the mother agreed to a 50/50 shared parenting arrangement with the child residing in both homes in Airdrie, which was finally embodied in the Consent Final Parenting Order. She submits that she regrets this decision as the inconsistent

schedule was hard on the child. For example, she believed that it was more difficult to potty train the child and there were inconsistencies in her bedtimes, naptimes and meals. Further, she submits that she was caring for the child approximately 80% of the time while the father looked after the child approximately 20% of the time despite the parenting

schedule set out in the Final Consent Parenting Order. [ 24 ] Ms. Ailon noted in her Assessment that the 50/50 parenting plan reflected that they both loved the child. However, there were definitely moments of tension, particularly where the father displayed anger towards the mother in front of the child. The mother described two incidents to Ms. Ailon and subsequently at trial; one of these incidents occurred when the mother brought up her desire to move to Ontario during drop off of the child by the father. The mother advised Ms. Ailon that the father apologized for getting angry but she told Ms.

Ailon that she did not wish to live in the same community as the father but wished to be closer to her family. Father ’s position [ 25 ] The father has resided in Airdrie since May 30, 2005. His mother lives in Sherwood Park and his brother, wife and children reside in Cochrane. [ 26 ] The father states that his role as a parent will be marginalized if this move occurs.

In his view, the travel has adversely affected their daughter due to the distance, change of time zones and traveling in inclement weather. [ 27 ] In his opinion, his ability to parent “would all but be over” as he would not be able to volunteer at his daughter’s school, participate or attend at school functions nor participate in daily parenting. There would be no opportunity to continue with developing a natural father/daughter relationship. The father submits that the proposed access regime by the mother is insufficient to maintain a close relationship with his daughter, let alone facilitate parenting.

He claims it would be psychologically and emotionally damaging for the child, if the court were to allow the move to Orangeville. [ 28 ] Further, the father contends that the mother has no need to relocate from Airdrie as she has had continuous and stable employment in Calgary. The fact that her husband could or could not relocate back to Calgary and find employment here is not relevant to these proceedings.

[ 29 ] The father’s family resides in Alberta and he told Ms. Ailon that his mother is moving to Airdrie to be closer to the child and her other grandchildren. His brother and family live in Cochrane. The father’s mother confirmed that she was willing to do this when she testified at trial. [ 30 ] Further, the father testified that if he relocated to Orangeville and he was prepared to consider that if that was in the child’s best interest, he would likely be required to find work in Toronto which is still at least a one hour drive from Orangeville.

Also, he has no support network in Ontario as all his family and friends, with the exception of one friend, reside in Alberta. [ 31 ] The father claims that with Moxie’s, now that his probationary period is over, he will be able to

schedule his work so as to accommodate his parenting time with his child after school and on weekends. However, he testified that he would do whatever it takes in order to parent his child, even switching careers. In fact, subsequent to the completion of evidence, the father through his counsel advised the Court that he had obtained a position in the head office of Moxie’s with work hours of 9:00 am to 5:00 pm, Monday through Friday. This will be effective June 16, 2012. VI. Psychological Assessment of Parenting prepared by Ms. Ailon [ 32 ] Ms.

Ailon was qualified as a clinical psychologist with expertise in parenting assessments. She was formally retained by both parties to prepare a Psychological Assessment of Parenting (“Assessment”). The parents were both informed that the psychologist was retained to make recommendations that are in the child’s best interests and may not appear to favour the parents’ positions. [ 33 ] Ms. Ailon interviewed the mother, father, the stepfather and the paternal grandmother and received collateral references from other family and friends.

She observed the child on four separate occasions in both homes and was able to travel to Orangeville to observe the child, her mother and family. She observed that the child was relaxed and happy in both homes and that both homes are situated in quiet family oriented communities. [ 34 ] Ms. Ailon was very impressed by the overall development of the child and the bond she has with both her mother and father. The child is very fond of her father. He was consistently attentive and gentle in his interactions with her and played energetic games with her.

The mother also showed affection in a natural and frequent manner. The mother showed a good deal of pride in what the child was able to do on her own. The child was sociable and comfortable with both parents. The stepfather was attentive and caring towards the child and she interacted playfully and naturally with him. [ 35 ] The child is remarkably well adjusted and happy. She spoke favourably of her stepfather and her extended family on both sides and seemed to feel the benefit of having a large number of people, who show her a great deal of affection and care. [ 36 ] Ms.

Ailon testified that in her view, one of the motivating factors of the mother’s move was to remove herself from the father. However, notwithstanding the mother’s hostility towards the father, the mother still acknowledged the good relationship that the child has with her father. [ 37 ] In Ms. Ailon’s opinion, the child is well looked after by both parents although the mother is sometimes critical of the father’s parenting style. There was an incident on a trampoline, where the child was injured on the trampoline while in the father’s care.

The mother thought he was negligent when he phoned her instead of phoning the hospital directly. Further, the mother felt that because the father liked to consult her with parenting questions that he was showing a weakness as a parent. On the other hand, the father made no negative comments about the mother’s parenting style. [ 38 ] According to Ms. Ailon, the research suggests that if the child were to relocate to Orangeville, into the day-to-day care of her mother, she will lose the close bond that she has with her father.

Likewise, if she stays in Alberta, the bond will not be as strong with her baby half sister [presuming that her mother does not relocate back to Airdrie].

[ 39 ] Ms. Ailon’s recommendations are at page 34 of her report. In

summary, she determined that the term “shared parenting” should be utilized with respect to the plan developed for the child. The child would benefit from a continuation of a parenting arrangement that afforded her frequent and equitable access to both of her parents. The most appropriate parenting arrangement would be for the mother to return to the Calgary area and live in close proximity to a school that the child could attend from both of her parents’ home. [ 40 ] However, should the mother not return to Airdrie then the parents will face difficult choices, Ms. Ailon opined.

The father may decide that he will relocate to Ontario in the Orangeville/Toronto area and they could continue on a 50/50 shared parenting arrangement. If not, then the child could continue the present two week rotation until the end of kindergarten and then she would reside primarily with her mother and family in Orangeville when she commences Grade 1 in September 2012. In this case, the child would spend 3/4 of her major school holiday time in her father’s care as well as one 4 to 5 day period a month in her father’s care.

Ms Ailon presented a third choice and that is that the child could alternate school years between the parents’ homes. [ 41 ] The mother submitted that the Assessment was outdated in its information and incomplete and factually incorrect. It was concluded in September 2011 and the mother argued that the circumstances have now changed. Counsel for the mother pointed to specific examples in the Assessment: Ms. Ailon was not made aware of how long the mother’s maternity leave would last or what her plans were for future employment prior to finalizing the Assessment. Further, the mother submitted that Ms.

Ailon did not thoroughly explore the number of hours that the father worked and she did not comment on the paternal grandmother providing care for the child while the father was working and absent from his home. In my view, the errors and omissions are not significant such that they would have any effect on the outcome of the matter. The Child [ 42 ] Ms. Ailon’s comments regarding the child illustrate that she is a well adjusted happy child, who has a loving caring relationship with both her father and her mother.

Her report card which was submitted as Exhibit 2 shows that she is doing very well in kindergarten and that she has made many friends, follows classroom routines and thoroughly enjoys interactive play. VII. Legislation [ 43 ] The parties were never married in this case, therefore, the governing legislation is Alberta’s Family Law Act S. 2003,c. F-4.5 provides as follows: Best interests of the child 18

(1) In all proceedings under this Part except proceedings under

section 20, the court shall take into consideration only the best interests of the child.

(2) 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, and (

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, (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, (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, and (

D) the appropriateness of making an order that would require the guardians to co-operate on issues affecting the child, (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, and (

B) between the child and each person in respect of whom an order under this Part would apply, (viii) the ability and willingness of each person in respect of whom an order under this Part would apply (

A) to care for and meet the needs of the child, and (

B) to communicate and co-operate on issues affecting the child, (ix) taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian, (

x) the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and (xi) any civil or criminal proceedings that are relevant to the safety or well-being of the child.

(3) In this section, “family violence” includes behaviour by a family or household member causing or attempting to cause physical harm to the child or another family or household member, including forced confinement or sexual abuse, or causing the child or another family or household member to reasonably fear for his or her safety or that of another person, but does not include

(

a) the use of force against a child as a means of correction by a guardian or person who has the care and control of the child if the forcedoes not exceed what is reasonable under the circumstances, or (

b) acts of self-protection or protection of another person.

(4) For the purpose of subsection (2)(b)(vi), the presence of family violence is to be established on a balance of probabilities. VIII. Analysis [44] The question of mobility depends on what is in the best interests of the child. The best interests inquiry is highlyindividualized and must be contextually sensitive. The leading case on this issue remains the Supreme Court decision of Gordon v.Goertz, (SCC), [1996] 2 SCR 27. Although Gordon is a divorce case, Alberta cases dealing with the variation of aparenting order governed by the Family Law Act apply Gordon as well. In Gordon v.

Towell, 2010 ABQB 396, 500 AR 243, Justice Leestated at paras 21 and 22: In the cases reviewed there has been no mention that the difference in the wording between s. 17(5) of the Divorce Act and s. 34(3) of theFamily Law Act is meaningful. The Court noted in T.S. v. A.V.T., 2008 ABQB 185 that with respect to the requirement of change incircumstance, the law interpreting the language in the Divorce Act applies equally to the Family Law Act.

When it comes to the second step of the Gordon inquiry, Alberta Courts generally either use only the criteria in s. 18 of the Family LawAct, or the s. 18 criteria in addition to the Gordon criteria to determine the best interests of the child. The Alberta Court of Appeal foundthe guidelines in Gordon helpful in determining the best interests of the children in the 2006 mobility case of MacPhail v. Karasek, 2006ABCA 238. In Adams v. Wyatt, 2007 ABQB 667, having found a material change, the Court considered the best interests of the child byfollowing the analysis required under the Family Law Act.

The Court did also consider the Gordon criteria noted in MacPhail,specifically the child's relationship with the caregiving parent. [45] McLachlin J. writing for the majority in Gordon, set out the following principles to assist in the determination of the bestinterests of the child. She outlined the following framework at 60: 1.The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child. 2.

If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitledto great respect. 5. Each case turns on its own unique circumstances.

The only issue is the best interests of the child in the particular circumstances of thecase. 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 ofthe 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. [46] McLachlin J. described the custodial test at 61: In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location mustbe weighed against the continuance of full contact with the child's access parent, its extended family and its community.

The ultimatequestion in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [47] In order to vary an order relating to custody and access, there must have been a material change in circumstances. Therequirements are the same under the Divorce Act as it is under the Family Law Act: Gordon at para. 29. Counsel for the father arguesthat, in this case, there has been no material change in the circumstances of the child since the parenting arrangement agreed upon by theparties and formalized in the Consent Final Parenting Order.

In that regard, the father argues here that there was no evidence of apromotion or a need to move for employment reasons. He submits the mother was on leave as a result of a challenging pregnancy andmaternity leave. It was only after she had moved from Calgary to Orangeville, that she then applied to change her home port withWestJet to Toronto. She did this as a consequence of the move and not because of any change in her employment status. That statusremains unchanged. In the result, the father submits that when the mother moved, she did so to effect a change in circumstances tosupport her new life.

That in itself, he argues, is not sufficient to justify a material change in circumstances of the child. [48] In Gordon, the court stated that there must have been a material change since the last custody order was made. The courtstated at 43-44: 12 What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must havealtered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), (BC SC), 35 R.F.L. (3d) 169 (B.C.S.C.).

The question is whether the previous order might have been different had thecircumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change shouldrepresent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court isseeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J. G.

McLeod, Child CustodyLaw and Practice (1992), at p. 11-5. 13 It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change inthe condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) whichmaterially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge whomade the initial order. [49] In Gordon, the judge determined that relocation will always be a “change”.

Often, but not always it will amount to a changewhich materially affects the circumstances of the child and the ability of the parent to meet its needs. The court stated at 44 Where, as here, the child enjoyed frequent and meaningful contact with the access parent, a move that would seriously curtail that

contact suffices to establish the necessary connection between the change and needs and circumstances of the child. [50] The father, in the case before me, relied on Hearn v. Hearn, 2004 ABQB 75, 352 AR 260 where Justice Slatter (as he thenwas), considered whether the above test applied when the custody and access arrangements have been set out by agreement, and not byorder. In that case, the parties both resided in Canmore with their two daughters, aged 9 and 12. After their separation, they both retainedcounsel and reached agreement on all matrimonial issues.

Formal Minutes of Settlement were drafted and signed. On the question ofcustody, the agreement stated that the “Husband and the Wife shall have the joint custody, management and control of the childrenaforesaid” and “they acknowledge that each shall have an equal role in all major decisions affecting the infant children. . .”. Four daysafter the mother signed the Minutes of Settlement, the mother, through her lawyer, advised the father that she proposed to sell thematrimonial home and relocate to Medicine Hat with their daughters.

Justice Slatter noted that this was completely contrary to the sharedparenting arrangement set out in the Minutes of Settlement and to the clear expectation set out in paragraph 4 of the agreement that theplaintiff, mother, was going to stay in Canmore and operate the matrimonial home as a bed and breakfast facility. The plaintiff stated thather immediate family, including a twin sister resided in Medicine Hat and she could not derive enough revenue from the bed andbreakfast operation in Canmore to pay the mortgage and other expenses.

Justice Slatter found that she had already made the decision tomove to Medicine Hat when she signed the Minutes of Settlement. Justice Slatter stated at para. 72: 72 The only material change is that the Plaintiff has now relocated to Medicine Hat, and the children remain in Canmore with theDefendant. Under the Gordon v. Goertz test, this would prima facie be a "material change of circumstances" that would justify a reviewof the custody arrangements. However, under the Miglin test this change has a lesser or different effect.

Unilateral decisions by oneparent to change the status quo in the face of a settlement agreement have less impact under the Miglin test, because of the importance ofsupporting settlement agreements. Further, this is not a case in which the mobility of one parent was not contemplated by the agreement(see clause 4, quoted supra, at para. 9) or by the parties. As I have indicated, it was clearly an implied term of this agreement that theparties would both remain in the Canmore area.

Mobility was specifically considered, and the parties effectively covenanted to limit theirmobility, at least for the next few years of the children's lives. This is an unusual case, like Pritchard v. Pritchard [1998] O.J. No. 3376,because the mobility of the Plaintiff was something that the Plaintiff actually considered at the time she signed the settlement agreement.This particular move would therefore not be a "changed circumstance" within the Gordon v. Goertz test, because it was somethingknown to her at the time the original decision was made: L.G. v. G.B., (SCC), [1995] 3 S.C.R. 370.

On these particularfacts, the result under the Miglin test and the Gordon v. Goertz test would probably be the same. [51] The father also relied on Andrushko v. Remillard (2003) (NL SC), 222 Nfld & PEIR 82 (NFLDSC) wherethe court dismissed the wife’s application to move. The trial judge determined that the applicant had not met the burden of showing thatthe children’s circumstances had changed materially since the custody arrangement was put in place.

The court held that the applicant’sremarriage was a foreseeable development and that none of the changes in the circumstances justified a review of the consensual consentorder. However, the court still went on to consider whether the move was in the best interests of the child and noted as follows at para.53: 53 There is another, perhaps more valid reason for me to consider the merits of this application, beyond the question of whether therehas been a material change in circumstances: There is a risk when dealing with family matters of being too analytical.

Sometimesformulaic responses are rolled out in reply to applications for custody and access. Those responses may provide adequate legal answersto the questions that are raised by those applications, but, at the same time, ignore the real needs of the children whose lives are at stake. [52] Further, in Young v. Young (2003), (ON CA), 63 OR (3d) 112 (CA), the Court of Appeal, did not giveeffect to the father’s argument that the move was not a change in circumstance.

The Court of Appeal stated that “relocation to pursue anemployment opportunity is a typical material change in circumstances well recognized by the courts.” The mother’s move to Cornwallwas thus a material change, which potentially affected the three children. [53] In this case, the mother received an interim order from Justice Park on May 17, 2011 for the child to spend 15 days with herand 15 days with the father without restriction as to where those 15 days could be spent.

It is clear from Justice Park’s Order thatrelocation was very much in issue and that at the time he granted this interim order he would have been aware by his review of themother’s affidavit that she and her husband had purchased a home in Orangeville and had moved or were in the process of moving toOrangeville. Given this, most of the cases presented by father’s counsel are distinguishable. On this basis alone, I find that there has beena material change in circumstances.

The reality of the situation is that the child has been flying back and forth between Airdrie andOrangeville for one year now and attending kindergarten in both cities; a significant period of time in a five year olds life. It would be anunrealistic expectation and a mistake to fail to look at the best interests of the child by simply determining that there had been no materialchange in circumstances. I find that there has been a material change in circumstances and therefore, this case requires a full analysis ofthe best interests of the child.

[ 54 ] Since a material change has been established I must turn my attention to the next steps in the Gordon framework. These steps inform me that I am to conduct a fresh inquiry of the specific circumstances of this situation to determine what is in the best interests of the child. There is no legal presumption in favour of the mother being allowed to move the child to Orangeville, Ontario. Courts in Alberta have used the Gordon criteria in addition to s. 18 of the Family Law Act to ascertain the best interests of the child when varying a parenting order: Gordon at 29. 1.

The existing custody arrangement and the relationship between the child and the custodial parent [ 55 ] Under the previously existing custody arrangement, the parties shared custody and control over the child. The child spent three days with each parent.

Now that the interim order of Justice Park is in place the child spends 15 days in Airdrie, in her father’s care and 15 days in Orangeville, in her mother’s care. [ 56 ] It is clear from the parties’ evidence and the Assessment that both parents have played a significant and loving role in raising their daughter and until the move to Orangeville, both shared equally in the parenting. Ms.

Ailon wrote at page 31 of the Assessment, with which I agree: In this case, the child has benefited from the love and support of both of her parents through an agreed upon parenting plan that evolved from almost daily contact with each of her parents to 3 days with each parent.

Through this [M.] has formed the type of appropriate attachments, with both of her parents, and her significant care givers, that are essential to her on-going psychological and psychosocial development. [M.] presents as a well adjusted child, to the credit of the thoughtful and sensitive parenting she has received from both her mother and her father. Due to her tender age, disruption of these attachments to either of her parents may well present a significant risk to her sense of well being and long term development.

In this particular situation, all of the factors relevant to the mother’s wish to relocate with the child have to be compared and contrasted with the loss the child would experience in moving such a distance away from her father. This child has experienced a warm and loving relationship with her father, who has been involved in her day-to-day life in an instrumental and enriching manner. Assessing the risks and benefits to children in relocation cases is a challenging and complex assessment.

Kelly and Lamb (2003), observe that in those cases where children have a meaningful relationship with both parents, the relative costs and benefits of relocation are far more difficult to evaluate. With young children who are forming secure attachments to their parents, it requires not only time spent together with the parents but also experiences across different domains of parenting. Additionally, in the final analysis, relocation will create obvious financial and travel burdens on the family (Waldron, 2005).

Austin and Gould, 2006) found that with respect to young children and relocation: “In light of the knowledge gleaned from the attachment theory (Ainsworth, Blehar, Walters & Wall, 1979) and the young child’s limited sense of time and lack of a sense of object permanence concerning the left-behind parent (Kelly & Lamb, 2003), there is probably a scientific and empirical basis for a de facto presumption against relocation in the instance of two involved parents and a very young child” (Fidler, Bala, Birnbaum and Kavassalis, 2008). [ 57 ] It is clear from the Assessment and the evidence that I heard at trial, that the father plays an active role in the child’s life.

They swim regularly and when she was living in Airdrie full time, she was enrolled in swimming lessons and gymnastics. The father purchased passes to Calaway Park and the Calgary Zoo. They play often at the park and every summer they vacation in the mountains. He also testified that when she is in his care, he arranges two to three play dates over a two week period. [ 58 ] The paternal grandmother testified as well. She travels down to Airdrie generally on weekends at least twice per month.

During the summer, the paternal grandmother spends more time here as she is able to take her vacation time through her job at Canada Post. The child has a good relationship with her sister-in-law’s grandchildren. They often spend time at the park. She picks the child up from the dayhome. She is prepared to retire here so she can assist the father with any childcare he may require. [ 59 ] The mother testified that the three day shared parenting arrangement was hard on their daughter as there was no consistency and she was “bounced around constantly”.

In the mother’s opinion, the two homes were very different with respect to discipline, potty training etc. Although she tried to communicate her concerns to the father the mother felt her concerns were not well received. She testified as follows (TT, page 20):

...We struggled a lot. I felt like if I said things, I was nagging him, and the things that I felt were important were not as important to him. So it was just one way over here and one way at this house. And – [M.] was the one that’s doing all the adjusting, and I –I do think that she has suffered because of it. I do think she has been bounced around quite a bit where she didn’t need to be. [ 60 ] The mother submits that now that she is on maternity leave she is currently home full time and is able to care for the child and her half sister.

When the mother returns to work at the end of her maternity leave on November 10, 2012, she plans to return to work part time as a flight attendant with WestJet, which requires approximately eight shifts per month; a minimum of 50 hours. She testified that the reason she went inflight was due to the flexibility of her schedule.

She is currently “porting” out of Toronto which is 35 minutes from Orangeville, although there was conflicting testimony over the driving distance and based on what I heard at trial, my understanding is that it is closer to one hour from her home in Orangeville to the Toronto airport. [ 61 ] Lisa Wandler, a manager at WestJet, testified as to the hours and type of shifts that are expected of a part time employee. Part time work requires a minimum of 50 hours per month. There is an option to work the required number of hours over a three month period.

For example, an airline attendant could work 25 hours in one month and could then make it up the following month by working 75 hours. This does not include the 50 minutes on the ground and the 15 minutes after release. These hours can be worked as a “pairing”. For example, the mother could work a three or four day pairing. A four day pairing is worth roughly 20 to 25 hours. Scheduling is fairly flexible and if a flight attendant wants to switch a shift, they can post this request on the internet software system.

There is a pool of over 2,000 airline attendants to draw from. [ 62 ] The mother’s husband gave evidence that he works Monday to Thursday, 8:00 am to 4:00 pm and that he works Fridays at home. He would be available to care for the children if she was required to work on Fridays and weekends. He is currently required to travel twice per year for up to four weeks. His family is eligible to come with him. The mother’s husband testified that he signed the contract with WestJet for his new position, as a Regional Trainer, on February 24, 2012.

He testified that an opportunity for a promotion arose two and half years ago but for reasons of confidentiality he was unable to discuss it. He testified that his previous position involved shift work and he was anxious to obtain a position with a more consistent schedule. In my view, his answers with respect to his current position with WestJet and whether or not he knew about it prior to the move to Orangeville were unclear.

He was also evasive and unclear about when he and his wife first made the offer to purchase on their home in Orangeville. [ 63 ] The child’s father has been working at Moxie’s in Calgary in a General Manager Program. At trial, he testified that he had not been assigned to a restaurant. We now know that has changed and he has been assigned a position in Moxie’s Calgary Head Office. He testified at trial that he typically worked a 7:00 am to 5:00 pm shift but could occasionally a Sunday brunch. He also had an 11:00 am to 9:00 pm shift.

During these days, when the child was with him and he was working, the child typically spent her day at kindergarten and then the day home and sometimes with the paternal grandmother when she was visiting. The father also testified that he has an opportunity to work at a restaurant in Airdrie commencing in September 2012, which would offer more flexibility but less career opportunities than Moxie’s. Counsel for the mother made much of the father’s inconsistent work

schedule with long and late work hours. [ 64 ] At trial, the father’s then work scheduled was tendered as Exhibit 36. He was cross-examined on various weeks of the

schedule when he had his child in his care. For example, on April 22 to May 4, 2012, when he had the child in his care, he worked as follows: April 22, Saturday: 7:00 am to 2:00 pm April 28, Saturday: 5:00 pm to close April 29, Sunday: 8:00 am to 6:00 pm April 30, Monday: 7:00 am to 5:00 pm May 1, Tuesday: 7:30 to 5:30 pm May 2, Wednesday: 8:45 to 4:30 pm May 3, Thursday: 8:45 am to 4:30 pm May 4, Friday: 11:00 am to 9:00 pm May 5, Saturday: 5:00 pm to close

May 6, Sunday: 5:00 pm to close; however it should be noted the mother picked up the child on this Sunday prior to 5:00 pm. [65] He testified that once the training regime at Moxie’s is finished, which will be very shortly, he will be more in control of hisown

schedule and anticipates that he will work only Monday to Friday, thereby being able to provide a more consistent parentingschedule. It was clear during cross-examination, which I accept to be the case, that he was willing to tailor his employment to best meetthe child’s needs.

In fact, after the completion of evidence, as earlier noted, I received a letter from the father’s counsel indicating thatthe father has been offered and accepted a position with Moxie’s Restaurants in their Head Office with work hours from Monday throughFriday from 9:00 am to 5:00 pm effective June 16, 2012. [66] Clearly, the father’s new job with Moxie’s would eliminate the need for third party care on weekends and in the evenings after5:30 p.m..

Also, although it would appear that the father is now in a better position to pick the child up by 5:30 pm from the day home, itcould well be difficult for him to meet this 5:30 pm deadline where there is heavy traffic, inclement weather, or last minute workcommitments.

If the child were to reside with her father in Airdrie, she would still be in after-school third party care five days per week,whereas if she resides with her mother and family in Orangeville, the need for after school third party care will be minimal. [67] When both parties were living in Airdrie they both did a lot of “juggling” in their child care arrangements for the child. Ifthere were employment issues, which meant they were unable to care for their child, they would support each other.

The mother testifiedthat although she had first right of refusal to care for the child, the father would not always offer it to her. The father did not want thestepfather picking up the child if the mother was not available. The father agreed on cross-examination that he sometimes phoned hismother to pick up the child prior to phoning the child’s mother. However, in my view, it was evident that at that time they both relied oneach other when their work schedules interfered with their child care for the child.

This option is no longer available now that the motherhas moved to Orangeville. [68] The day home provider testified and it is evident from the parents’ and her evidence that the child and the parents have hadthe advantage of an excellent child care facility. She was supportive of both the mother and the father and when asked her opinion shetestified as follows: Q What is it about the move that you don’t support? A Well, I feel like it is taking [M.] away from her dad.

I feel like, you know, sure she can come in the summer, she can come on longweekends, she can come on spring break, she can come at Christmas, but unless [C.K.] were to move there, he can’t be a part of her, youknow, parent/teacher interviews, her dance recital, her supports, you know, whatever she’s involved in when she gets older, that sort ofthing. And, you know, when she gets older, it’s going to get to the point where she’s going to have her friends there, and she’s not goingto want to come here. So I just, I mean, that’s only my opinion, I mean, I don’t. . .

Q In your -- A But I, I should say that if [N.M.] lived here, I probably would support [N.M.] having primary custody, because given [C.K.]’s job. [69] The mother relied on the case of Murray v. MacKay, 2006 NSCA 84, 245 NSR (2d) 261, where the court awarded jointcustody with the mother having day-to-care control of their daughter, primarily because she was a stay at home mother and the fatherworked full time and would be forced to leave their daughter in the care of others for a significant period of time during the day. Murraydid not involve a mobility application. [70] The mother also relied on Pisko v.

Pisko (1997), 1997 ABCA 243 , 200 AR 330 (CA). In Pisko, the appellant mothersought leave to move to Scotland with her new husband and the child. Her new husband was transferred to Scotland for a temporary twoyear posting. The Court of Appeal determined that while a move of the child would be detrimental to the access arrangements currentlyin place, it would not eliminate access but change the timing of those visits.

Insufficient weight was placed on the benefits of moving, inparticular the fact that the mother would not be required to work in Aberdeen and could be a stay-at-home mother with all the benefitsthat entails. The Court of Appeal also considered the negative effects resulting from the delay in introducing the child into the newfamily unit and the effects felt by him if the new family was forced to live apart. The court also discussed the fact that the move wastemporary.

The mother agreed that she would return to Canada for Junior High School and the court took that into consideration in theirdecision. [71] In the case before me, there was no evidence that the mother is, in the immediate future, going to be a stay-at-home mother.To the contrary, she testified that she would be working part-time with WestJet once her maternity leave was finished. However, I do

note that there is ample flexibility in her job to allow her to be at home with her child after school and on weekends with minimal third party care, as she is only returning to work part-time. 2. The existing custody arrangement and the relationship between the child and the access parent. [ 72 ] In this case, both parties had equal access to the child. In keeping with Justice Park’s Order, the intention was that the shared parenting continue, but now with an alternating 15 day period.

However, as the child starts full time school in Grade 1 in the fall, this arrangement is no longer viable, nor feasible as her residence must be in one location. 3. The desirability of maximum contact between the child and both parents [ 73 ] The primary concern in mobility cases is the loss of contact between a parent and a child, in this case between the father and the child. Up until now, the child has enjoyed an extremely frequent and close level of contact with both parents and their respective extended families.

It is clear that the child has benefited from this close contact with both parents and their extended families. [ 74 ] As previously noted, Ms. Ailon testified that she is a very happy, extremely well adjusted child who has a close bond with both parents. Parent child observations of the child and the father indicated that the child is very fond of him. He was consistently attentive and gentle in his interactions with the child and is clearly very engaged and active in her upbringing.

Likewise, there is a strong bond between the mother and the child. [ 75 ] Maximum contact with both parents is deemed to be in the best interests of the child. The mother argues that she will continue to facilitate as much contact as possible. Both the mother and stepfather work for WestJet and have indicated that the father can use their “buddy”passes to see the child. The mother acknowledged that travel with buddy passes is all on standby which could potentially be a problem at peak holiday times.

She also conceded that the father could potentially lose a day of access if the planes are delayed or if the child is unable to get on a flight because they are full. Alternatively, the child can get half priced fares on a confirmed ticket. The mother testified that she would be willing to pay for this travel. Further, until the child turns eight, she will have to be accompanied by an adult.

There have also been instances in the past year when the child was unable to fly as she had an ear infection. [ 76 ] The mother agreed that contact with the child’s father will be reduced if the child is allowed to move to Orangeville.

Further if the child travels back to Airdrie for visits, as is the case now, the mother agreed it will be tiring for the child and there will be inconsistencies in the child’s bedtimes. [ 77 ] Subsection 16(10) of the Divorce Act expressly requires the court, in making or varying an order for custody or access, to give effect to the principle that a child of the marriage should have as much contact with each spouse or former spouse as is consistent with the best interests of the child, and for that purpose, take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

Although the wording in the Family Law Act , does not follow this wording of the Divorce Act , the Family Law Act has a

section which states that the benefit of the child developing and maintaining meaningful relationships with each guardian is emphasized.

Not only must I take into account the bond the child has with her father and the impact on that bond and their relationship, if the child is to permanently move to Orangeville, but I must also take into account the bond the child has with her mother and the effect on that mother/daughter relationship, if she were to remain in Airdrie without her mother and family. [ 78 ] The Supreme Court, in Young , at para. 40 , made the following statements regarding the provision favouring contact with both parents: While the Act specifies that access is a value to be preserved, the objective in s. 16(10) that a child have "as much contact with each spouse" is immediately qualified by the proviso "as is consistent with the best interests of the child" (emphasis added).

Thus, it is clear that maximum contact is not an unbridled objective, and that it must be curtailed wherever the welfare of the child requires it. The best interests of the child remain the prism through which all other considerations are refracted.

[79] With respect to the impact on the existing bond that the child has with her father, Ms. Ailon states on page 32 of theAssessment, with which I agree: Geographical distance is considered to create considerable barriers to continuity of contact and attachment between children and theirnon-moving parent. Despite the good will initially extended by the relocating parent, regarding the willingness to support the child’srelationship with the other parent, the literature indicates that maintaining regular and meaningful contact with the other parent oftenbecomes highly contentious over time.

There are often time constraints, financial considerations, the child’s schedules and activities, thedevelopmental changes that occur as the child matures, illness, weather, and communication problems that interfere with “the best laidplans” The child is always the one that suffers the loss.

Over time, parenting time with the other parent tends to reduce significantly. [80] However, it is to be remembered that the bond between the mother and child is a strong one as she has been the child’sprimary caregiver for the first 14 months of the child’s life and is presently on maternity leave for a year; a period of almost half thechild’s life where the child has been with her stay-at-home mother. [81] There is also the consideration of the contact and bonding of the child with her baby half sister. An additional factor whichmay be applicable in the circumstances is the separation of siblings.

There is some authority supporting the principle of non-separationof siblings, where emphasis is placed on the family unit and the bond created between children: see, e.g., Langtry v. Langtry (1997), (BC CA), 27 RFL (4th) 340, White v. White (1994), (NB KB), 151 NBR (2d) 10 (QB); Taylor v.Taylor (1987), (NB KB), 83 NBR (2d) 145 (QB). [82] In Jones v. Jones (1994), (SK KB), 122 Sask R 114 (QB), the court determined that while keeping siblingstogether is an important consideration, it is not determinative of the issue of custody. This is particularly so in cases where the childrenare not close in age.

It does not appear that the proposition that children should not be separated has been elevated to a rule of law. It isdesirable, if it can be accomplished: Zinck v. Zinck (1973), (NS CA), 6 NSR (2d) 419, 43 DLR (3d) 157 (CA). [83] While this custody award is not contingent on this factor alone, I do consider the bond between the child and her half sister tobe an important factor in this case, certainly given their young ages and that the child has been a significant part of her half sister’s lifesince she was born in November 2011. 4.

The views of the child [84] The wishes of the child are another factor to consider in determining the best interests of the child and should be taken intoaccount in custody disputes, provided the child is old enough and mature enough to express a reasoned preference. Ms. Ailon did not askthe child about her preference with regards to living arrangements nor am I of the view that it would have been appropriate to, given heryoung age of five years. [85] In any event, I am satisfied from Ms. Ailon’s observations and from the evidence I heard at trial that the child is well adjustedand equally bonded to both parents.

However, of late, I noted from the evidence that the child is missing her half sister and family inOrangeville when she is with her father in Airdrie like most young children whose parents have separated and with whom they have aclose relationship. The child has expressed to her father her wish that her parents could live together again, which of course is notpossible as her mother has moved on with her life and is now married with two children. 5.

The custodial parent’s reasons for moving [86] In Gordon, the Supreme Court indicated that only in exceptional circumstances will the custodial parent’s reasons for movingbe taking into consideration. The circumstances must be such that the reasons for moving are relevant to the parent’s ability to meet theneeds of the child: Gordon at 48. [87] The mother testified that the quality of life is better in Orangeville, Ontario and both she and her new husband have familymembers who reside in Ontario.

She was able to find an affordable home in an established area and it is a safe and comfortableenvironment in which to raise children. The benefits to her daughter have been a tight familial network which, according to her, provides

her child with the love, support and security and stability that she requires at this stage in her life. [ 88 ] The mother kept stressing that they would be closer to family. However, I do not agree. She has testified that her immediate family live in Thunder Bay, Ontario as do many aunts, uncles and cousins. However, to travel to Thunder Bay they must first drive to the Toronto airport, which is an hour from their Orangeville home, then it is a one hour and 20 minute flight to Thunder Bay and it is a 20 minute drive to their destination in Thunder Bay for a minimum of two hours and 40 minutes travelling.

Therefore, I do not take the mother’s reasons for moving into account in making my decision. [ 89 ] The mother’s husband testified that their reason for moving was as follows: Again, job sustainability, security, more of a family atmosphere, being around a little bit more of a networking, if you will, through our direct family and our immediate family back in Ontario, residing in Ontario for – [ 90 ] The husband is an employee of WestJet and at the time of the move he was still working in Calgary. In fact, this “port” or base of work in Calgary only recently ended on March 1, 2012.

He is now based in Toronto as a Regional Trainer for Eastern Canada, the Carribean and the United States. He testified that discussions arose around this new position approximately two and a half years ago. However, as mentioned earlier, for confidentiality reasons he could not discuss the proposed promotion. [ 91 ] In MacPhail v. Karasek , 2006 ABCA 238 , 409 AR 170, the Court of Appeal overturned the trial judge’s decision, holding that he placed too much emphasis on the reason for the move.

The Court of Appeal stated at para. 54: In the end, therefore, we are satisfied the trial judge erred in law by failing to place on the balancing scales the impact of separating the child from her mother, and by focussing on the reasons for the move and her reasons for not returning to Medicine Hat. We are satisfied that the child's best interests will not be served by sending this back for a new trial.

The parenting skills of both parents were never in issue.. . . [ 92 ] Although, in this case, there was some evidence at trial that the mother may have moved to remove herself from close contact from the father, I accept that this was not the major motivation for moving. 5. Disruption to the child of a change in custody [ 93 ] A permanent relocation to Orangeville, Ontario will undoubtedly disrupt the child’s life and more particularly the close relationship with her father, the paternal grandmother and his extended family.

The change in circumstances from no longer seeing both parents on a regular weekly basis and benefiting equally from the love and care that each can provide, will be a disruption to her life. However, as mentioned earlier, the child has been spending half of her time in Orangeville for over a year now so she is used to being away from her father for longer periods of time. [ 94 ] Presently, the child goes to a day home after she has been in kindergarten when she is in Airdrie. According to the mother, she can be at the day home for up to 12 hours, when she is in her father’s care.

She also spends a lot of time in the care of her paternal grandmother, friends and the father’s aunt, due to his work schedule. In the mother’s view, his work

schedule is erratic, and unpredictable. He often starts early in the morning and finishes late at night. [ 95 ] The dayhome provider provided an e-mail (Exhibit 22) stating that she will not work past 5:30 pm as of the end of June 2012. When questioned about this on cross-examination, the father stated that he will do his best to arrive on time. If he is not able to, then he will make alternate care arrangements for his child. Given that he has now accepted employment with Moxie’s with regular work hours Monday through Friday, as earlier noted, it appears that he will be better able to arrive on time.

However, with the distance from Calgary to Airdrie and heavy traffic or inclement weather or last minute work commitments, there will likely be occasions when he will be late arriving at the dayhome.

[ 96 ] Although, the child will undoubtedly lose the frequent access she had to her father if she is to reside permanently in Orangeville, through nightly telephone calls and/or Skype and a generous access schedule, the child should be able to maintain the close bond that she currently shares with her father; albeit not a perfectly close bond. 6. Disruption to the Child Consequent on Removal from Family, Schools and the Community [ 97 ] The child was born in Calgary and has lived in the Calgary/Airdrie area all her life. She is still young so does not have any close ties to schools or sports leagues yet.

However, her third party caregivers and her father’s extended family all reside in the Airdrie area. The paternal grandmother testified that if the father is granted day-to-day care of her grandchild, she will move to Airdrie from her home in Sherwood Park to assist in the care of her grandchild. [ 98 ] In Airdrie, the child is enrolled in a kindergarten, which is close to the day home. It was recommended to the father by the day home provider.

The child cannot attend Grade 1 at the same school in Airdrie, which she presently attends for kindergarten, as she is required to attend a school within walking distance of her home address. The father testified that he has made arrangements to drop her off at school everyday and then his aunt would drive her back to the dayhome after school. Alternatively, if he starts work early, the child can catch a bus with the other dayhome children. [ 99 ] The child’s mother testified that despite the fact that the child attends part-time at her kindergarten, she is very social at her kindergarten in Orangeville.

She has friends and supportive teachers. She is doing well in kindergarten in Orangeville, although her teacher has mentioned she is tired on her return visits from her home in Airdrie. [ 100 ] This case is somewhat unique as we are looking at a situation where the child is spending half of every month for the past year with her mother and family in Orangeville and the other half with her father in Airdrie. The child has been attending kindergarten in Orangeville and Airdrie since September 2011 and she has made friends and participated in extra curricular activities in both.

Further, if the child were to reside in Airdrie, she will be attending a new school there next year in any event. Therefore, a move to Orangeville will not create a significant disruption in terms of the school and community. Conduct of the parties [ 101 ] In Zanewycz v. Manryk 2010 ONSC 726 , the court made the following comments about parental conduct at paras 118- 120: Parental conduct, particularly as it relates to the willingness of a party to foster the children’s relationship and to promote and accommodate an access

schedule with the non-custodial parent, is a critical factor in every mobility case. Parental conduct in relocation cases has typically been focussed on an inquiry as to the moving parents’ reason or motives for moving and whether those reasons include a desire to limit the other parent’s access to the children. It is important when examining motivation in these cases not to shift the inquiry away from what is in the best interests of the children.

I am satisfied that the Wife’s motivation for moving to Georgetown is not with the intention of limiting the Husband’s contact with the children to prevent harm to the children from the continued conflict between the parties. I accept her conduct and motivation for moving as being reasonable and in the children’s best interest. [ 102 ] In that case, the judge found that the wife would facilitate contact whereas, notwithstanding the husband’s stated intention, he would not. The judge found that the father’s anger coloured everything he did with the children. [ 103 ] I find that this is not the case here.

There has been some conflict between the parties and between the mother and paternal grandmother, however, the specific incidents that were presented at trial were not significant and do not overly concern and trouble me. The mother clearly has certain issues with the father’s parenting style. She has no issue with his residence although she did testify that it is not very tidy. She also feels that he does not take care of the child’s personal hygiene. This is not borne out by any of the other

witnesses. On the contrary, the day home provider testified that the child was always well groomed and cared for. Therefore, I do not take this into account and do not accept the mother’s testimony on this point.

When cross-examined regarding the day home provider’s comment the mother’s response was that “she is a neutral party and does not want to get involved.” I do not find the mother’s testimony on this to be credible. [ 104 ] There has certainly been some hostility towards the father and the mother suggested that he is: Invasive with things in my life, so I have boundaries with myself because I’m not with him. Has his access to his daughter and has his relationship with his daughter. He doesn’t necessarily have to have a relationship with me. [ 105 ] There were some alleged “anger” incidents by the father.

For example, the father displayed anger regarding the child’s backpack when it was not returned to him and he lost his temper but later realized his actions were inappropriate and subsequently apologized within the same day. This incident took place three years ago. On cross-examination, the mother agreed that the recurring theme that caused the father to be angry was when she brought up the move to Ontario and alteration of the parenting plan. [ 106 ] The father kept a relatively detailed journal of access and timing of visits.

In his journal, he also noted times when the mother threatened that she would seek full custody of the child. I accept the father’s evidence on this point, although it does not impact my decision on whether or not the child should be allowed to move to Orangeville. However, the mother’s conduct in this regard, in my view, may well have cost implications. [ 107 ] I do have some minor concerns with respect to the mother facilitating contact between the child and the father. The evidence illustrated that the mother can be verbally abusive to the father, particularly in text format.

The evidence also illustrated, that unlike the father, she never apologized for any of her inappropriate behaviour. In fact there was a text shown at trial that was abusive and causes me some concern as she allowed her anger to prevent the father from saying good night to the child. For example, on January 18, 2012, the exchange went as follows: Mother: 7:47 pm: You are a lying, disgusting piece of shit and I absolutely hate everything about you Father 8:02 pm: Can I talk to [M.]? Mother: Go to hell Father: Why are you saying that? Mother: She’s bathing and going to bed. Father: What’s going on?

Why are u saying this? I want to say good night to her Father 8:25 pm: Why are u preventing me from speaking to [M.]? I only want to say goodnight to her. It will only be 2 min Mother: You are the worst person I have ever met and you r going to mess up your child’s life in the long run. Hope u r happy. [ 108 ] The mother testified that the negative comments she made were in response to a call from Revenue Canada saying that she owed money for her taxes. Apparently, the father had not provided her with his required tax information for the last three years.

She agreed that the comment came out of the blue and testified that this was due to the fact that she was not allowed to discuss the issue with him, presumably, because they were in litigation over the child’s proposed move. At trial, the mother recognized that this behaviour and text message were inappropriate. I am confident that there will not be a repetition of this type of behaviour in the future. [ 109 ] In my view, the evidence illustrates that both parents are competent, loving parents and their disagreements are not of a serious concern that would adversely affect the parenting of their child.

Certainly, Ms. Ailon supports this view, which I accept, when she gave her evidence at trial on the minimal conflict between the parents.

Best Interests of the Child [ 110 ] In the end the test for mobility applications is always the best interests of the child. My review and application of the Gordon factors and the factors in

section 18 of the Family Law Act to the circumstances of the facts of this case produce mixed results. Some factors support the father’s position and some the mother’s. Each case is highly fact specific; however, some of the case law presented provides useful guidelines. [ 111 ] In P.O.T. v. B.E.M. , 2010 ABCA 22 , aff’g 2009 ABQB 256 , the mother and father of two children shared joint custody pursuant to a court order. The mother brought an application for a mobility order to permit her to move with the children from Canmore, Alberta to Montreal, Quebec.

As in the present circumstances, the case involved the difficult decision of determining the issue of mobility where both parents were actively involved in the daily lives of their children. At trial, the trial judge refused to allow the mother to take her children with her when relocating from Alberta to Quebec. In that case, as in this one, the Court of Appeal, on an appeal from the appellant mother, noted that the children benefited greatly from the close relationship they enjoyed with both their parents.

The Court of Appeal determined that the children were well settled and thriving in Canmore and that a move to Montreal, on the hope that the appellant would find better employment there, was not in the best interests of the children. In the result, the appellant mother’s appeal was dismissed. [ 112 ] The father submitted the case of Adams v. Adams , 2003 ABQB 732 , where the mother, who was Argentinian, asked the court to give her sole custody so that she could relocate to Argentina with her seven year old son. The child was born in Alberta and lived here until he was five.

When his mother and father were still together, his father would be away for months at a time working. The mother remarried and she lived with her son and her new husband in Venezuela and then her son lived with her in Argentina while her husband was on contract in Saudi Arabia. Her new husband was an Albertan and his family lived in Alberta although her parents and other relatives lived in Argentina.

The Court denied the mother’s application to move with her son to Argentina, stating that the child’s best interests were served by having him reside in Canada where he could have access to both his parents, to his paternal extended family and to his step-family. Moreover, the Court determined that Canadian residence would allow him to pursue his education to a standard which would be in his best interests. It found that the only person’s best interests, who would be served by residence in Argentina, was the mother. [ 113 ] In Markin v.

Gysel, 2004 BCSC 364 , reconsideration allowed 2006 BCSC 1275 , the mother wanted to move to Kelowna from Williams Lake, B.C. The child had a good relationship with both parents. The parenting styles differed but the court determined that this was not unusual nor was it necessarily detrimental to the child. The Court determined that the existing arrangement met the objective of maximizing contact between two good parents. Both parents had much to offer their son as he grew and developed.

In the Court’s view, it would be a real loss to the child if he were to lose the benefit of close contact with both parents and consequently directed that the parents can continue to share the day-to-day parenting. It was apparent that the mother had no intention of moving to Kelowna if her son was not permitted to go with her. However, two years later, the mother applied for a reconsideration of the order. The Chamber’s Judge then granted her application. She had tried unsuccessfully to obtain employment in her field in Williams Lake. She applied and was accepted for a College in the Okanagan.

The Court found that her motives in seeking to move to improve her economic circumstances were genuine. The Court rescinded the provision in the Order prohibiting her to move to Kelowna. [ 114 ] Recently in S.M.K. v. O.A.J., 2012 ABCA 49 , the Court of Appeal upheld the decision of the Chamber’s Judge to deny the mother’s application to move with the child to London, England. She was a dental hygienist but her qualifications had not been accepted in Canada and therefore, she argued she was unemployed in Canada.

She had a job waiting for her in England with a significant salary, equivalent to $90,000.00 Canadian per annum. Apparently, there was no evidence before the Chamber’s Judge that opportunity would be lost if deferred to a later date. The Appellant’s mother and extended family resided in England. The Court of Appeal noted that the Chamber’s Judge properly balanced the competing factors and did not misapply Gordon v. Goertz . The Chamber’s Judge had concluded (at ARD F53/24-29): I’m satisfied at this point that a move to the UK would basically sever the child’s relationship with her father.

I do not believe it is in her best interest to be uprooted from her home, father, and grandparents that she knows. If the defendant is working full-time, [M.] would be in unfamiliar care with unfamiliar caregivers a good portion of the time. That is not in her best interest, taking into consideration her situation at birth. [ 115 ] The mother, in the case before me, relied on B.(L.) v. L.(K.), 2006 YKSC 56 , where the mother there was permitted to relocate with the child to Calgary from Whitehorse. However, this case is clearly distinguishable on the facts. In B. (L.) v.

L(K.) , the mother was a much more involved parent than the father. Although the father was a competent and loving parent, he failed to exercise access and exhibited a somewhat disinterested attitude towards the child’s extra-curricular and school activities, which supported the conclusion that the child’s best interests were served by residing with his mother in Calgary.

[ 116 ] The mother also submitted the case of Zanewycz v. Manryk , 2010 ONSC 726 , where the main issue was custody of the children. In that case, the parties shared parenting on a 50/50 basis but at trial, both parties agreed that this arrangement was not working for them or the children. The mother wished to relocate with the children from Thunder Bay to Georgetown, Ontario. Notably, in this case, the trial judge stated that the use of third party caregivers was not a factor to be given any significant weight in the determination of the custody of the children.

The evidence showed that both parties spent their time with their children when the children were in their care. It also showed that both parties relied on third parties at times, which was not unusual in any separation when parents suddenly find themselves in the role of single parents. In Zanewycz , the parental conflict was a significant factor, which the trial judge found to be harmful to the children. The trial judge determined that the mother was best suited to minimize the conflict or to shield the children from it.

Zanewycz is distinguishable from the present case, given that there was a high level of conflict between the parties and the fact that the trial judge found the mother at the time to be the primary caregiver in Zanewycz ; none of which is the situation here when the mother returns to work part time at WestJet, as presently is her stated intention. [ 117 ] The court was faced with a difficult decision in Thurston v. Maystrowich, 2010 SKCA 113 .

There the Saskatchewan Court of Appeal reviewed the trial judge’s decision, where the mother had applied to vary the shared parenting arrangement between the parties and relocate with her six year old daughter and her new husband to Yorkton, from Saskatoon where the new husband had an opportunity to take over the family farm in the Yorkton area. The mother was prepared to quit her job and to move to the farm and be a stay-at-home mother. The trial judge, like the case before me, found that both the mother and the father were loving involved parents, who for the most part, communicated well with each other.

The trial judge found that the mother was the primary parent when it came to medical and extracurricular activities and that the mother was the child’s primary caregiver early in her life; her psychological attachment was thus in the mother’s favour. The trial judge found that although the move would not compensate for s

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