Y.B. v. Y.E.B., 2012 ABQB 453

Court of Queen ’ s Bench of Alberta Citation: Y.B. v. Y.E.B., 2012 ABQB 453 Date: 20120719 Docket: 4801 137659 Registry: Calgary Between: Y.B. Applicant - and - Y.E.B. Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J. Strekaf Given Orally on July 10, 2012 _______________________________________________________ 1. Introduction [ 1 ] Ms. B is applying to relocate to Israel with her two children. The application is opposed by Mr. B, the father of the children. The application proceeded before me as a viva voce hearing. Ms.

B testified and called Ambassador Alan Baker (the former Israeli Ambassador to Canada). Mr. B testified and called Eileen Ailon (a Registered Psychologist). Counsel for the children, made submissions on their behalf.

[ 2 ] By way of background, Ms. B and Mr. B were married in Haifa, Israel on August 6, 1998. They have two children, A.B., born November 1999 (now 12) and D.B., born December 2001 (now 10). [ 3 ] The parties separated in July 2008 but continued to live together in the matrimonial home located in Chinook Park in Calgary until Ms. B moved out in August 2009 and into a house in a nearby neighbourhood. At that time, Ms. B and Mr. B entered into a shared parenting arrangement with the children staying with each parent on alternate weeks, but with significant access to the other parent.

Initially the access was daily and that has evolved by consent to three times during the week the children are residing with the other parent. [ 4 ] Ms. B is 50 years of age and moved to Canada from Israel in 1998 following the wedding. She obtained a teaching certificate with a specialty in Land of Israel studies in 1986. She has had difficulty in finding remunerative employment in Canada. [ 5 ] Mr. B is 59 years of age. He is a piano teacher who moved to Calgary from Lithuania in 1981.

He has been teaching piano lessons in association with Mount Royal College since his arrival in Canada and continues to do so out of the former matrimonial home, where he continues to reside. [ 6 ] The children were born in Canada and have resided here all their lives. They have attended Chinook Park Elementary School for the past two years. A.B. has just completed Grade 6 and D.B. has just completed Grade 4. Both boys love sports and are actively involved in a number of extracurricular activities including hockey, baseball, basketball and piano lessons.

By all reports, both boys are bright, polite and delightful children. Whatever their differences, Ms. B and Mr. B have raised two wonderful boys and that is to the credit of both parents. 2. Parties ’ Positions [ 7 ] Ms. B wishes to move to Israel because she always intended to move back. She wishes to be close to her extended family there. She will be better able to work in Israel and contribute towards the support of her boys. She believes that she will be happier in Israel and that the boys will be happier if she is happier.

She also believes that the boys will be more likely to marry Jewish women if they are living in Israel. [ 8 ] Mr. B opposes the move because he is concerned that his relationship with the boys will suffer if they move to Israel due to the distance between Israel and Calgary. He is not prepared to move to Israel as he does not believe he would be able to obtain employment since he doesn’t speak Hebrew and understands that there are already many piano teachers in Israel.

He is concerned that the boys will face compulsory military service at the age of 18 if they are Israeli citizens (which they would become if they moved there to live) and that this would delay their post-secondary education which he will be less able to contribute towards due to his age. [ 9 ] The boys’ views were presented through their legal counsel.

He noted that both parents love their children and are active in their children’s lives, that both have their strengths and weaknesses and that both recognize that the other is a good parent and that it is important for the other parent to have a good relationship with the boys. He stated that the boys are happy and settled at their present school, that both are doing well academically, have friends at school and are highly regarded by their teachers and the principal. Both love sports and are involved in soccer, basketball, baseball and enjoy piano. Both boys have indicated to him that:

a) they love both parents;

b) they do not want to be placed in a position where they are expected to pick either parent;

c) they do not want to lose their relationship with either parent;

d) while the boys are more emotionally attached to their mother and have a stronger relationship with her, they also love their father;

e) they are happy and content with the present arrangement which allows regular contact with both parents;

f) they are comfortable in both residences; and

g) they rely upon each other and do not wish to be separated from each other. [10] Counsel for the boys indicated that it appears that both parents have discussed the litigation with the boys in too much detailand put undue pressure and stress on the boys. The boys began seeing a psychologist, Nicole Sheldon, for counselling in January 2012.She recommended that the boys should continue to receive counselling and that the parents should see a separate counsellor to try andimprove communication between themselves, which would reduce the stress the boys are experiencing.

While the boys have notexpressed concerns about safety in Israel, Counsel noted that Canada is somewhat safer than Israel and suggested that while that was notdeterminative, it was a factor to be weighed. 3. Applicable Law [11] The leading case with respect to the mobility of children is the Supreme Court of Canada's decision in Gordon v Goertz, (SCC), [1996] 2 SCR 27, where the Court stated at paragraphs 49 and 50: The law can be summarized as follows: 1.

The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a 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 areentitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances ofthe case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

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

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

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

d) the views of the child;

(

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (

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

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? 4.

Analysis [ 12 ] In this case, as there is no existing permanent custody order which is sought to be varied, as was the case in Gordon v Goertz , supra , it is not necessary to consider the threshold requirement of there being a material change in circumstances.

That said, where the children have been in a shared custody arrangement with alternative weeks with each parent who both live in the same neighbourhood in Calgary for a period of almost three years, one parent relocating to Israel would satisfy that criteria. [ 13 ] The test to be applied on this application is whether it would be in the best interests of the children to move to Israel with their mother or remain in Calgary in the care of their father. The principal factors which I have taken into account in assessing the implications of these alternatives are outlined below. A.

The Existing Custody Arrangements [ 14 ] The existing custody and access arrangements in this case are such that neither parent can be properly characterized as an access parent or a custodial parent, given the day-to-day equal parenting arrangements that have existed for the past three years. B. The Relationship between the Children and the Each of Their Parents [ 15 ] The relationship between the boys and each of their parents is very good. Ms. B and Mr. B are both capable, fit and involved parents who love their children and are loved by their children very much.

While the boys are closer to their mother, they have a good relationship with their father. C. Maximizing Contact between the Children and Both Parents [ 16 ] The goal of maximizing contact between the boys and each of their parents will inevitably suffer under either scenario. The boys are very close to both parents, and their contact with one of their parents will be radically reduced given both the geographic distance between Calgary and Israel and the time zone differences.

In her report and her testimony Eileen Ailon identified an issue of concern that arises in move away cases is that maintaining regular and meaningful contact between the distant parent and the children becomes highly contentious over time, even where there is initial good will, due to financial considerations, children’s schedules and activities, developmental changes, time constraints and communication problems. This disruption in the parent/child relationship can reasonably be expected to occur between the children and Mr. B if the children move to Israel or between the children and Ms.

B if the children remain in Calgary and she moves to Israel. D. Views of the Children

[ 17 ] The boys have refused to pick between their parents or express a preference between moving to Israel with their mother or remaining in Calgary with their father. This suggests that the boys will be prepared to go along with whatever decision is made. This is not a case whether the children have expressed opposition to living with either parent or where they have threatened to engage in conduct such as running away if a particular outcome was ordered. E. Reasons for the Move [ 18 ] Ms.

B’s reasons for moving are reasonable and relevant in the exceptional circumstances of this case as she would be more likely to be able to obtain remunerative employment in Israel than in Canada which would enable her to contribute towards the financial support of the boys in a more meaningful fashion. F.

Disruption to the Children of a Change in Custody [ 19 ] There will be a similar disruption to the existing shared parenting arrangement under either scenario as the boys will move from spending equal time with each parent to spending the majority of their time with one parent with only periodic visits with the other parent due to the distance between Calgary and Israel. G. Disruption to the Children due to their Removal from their Community [ 20 ] The boys have attended Chinook Park Elementary school since September 2010.

If they continue to live in Calgary, A.B. will move on to Woodman Jr High School this fall to attend Grade 7 and D.B. will continue Chinook Park in Grade 5. Both boys are doing well at school and are well regarded by their teachers and the principal and both have friends at school and in the community. Both boys are actively engaged in numerous extracurricular activities in Calgary. [ 21 ] The boys have visited Israel on several occasions and both are fluent in Hebrew. Ms.

B has arranged for employment in Israel, has secured appropriate accommodation for her and the boys in the Town of Zichron Yaakhov and has investigated appropriate schooling options and social activities for the boys. Zichron Yaakhov is a pleasant town near Haifa where Mr. B has family and near Ms. B’s extended family. Ms. B has developed a reasonable and appropriate plan for her and the boys should she be permitted to relocate with them to Israel. The boys have no family in Calgary beyond Ms. B and Mr.

B and would have the opportunity to get to know and spend time with both parents’ extended family in Israel. [ 22 ] While disruption to the boys lives will be inevitable either either scenario, it will be less if they remain in Calgary with their father instead of moving to Israel with their mother because:

a) They will continue to reside in the home they have lived in since birth, rather than move to a new house in a new country where they know virtually no one except a few relatives;

b) They will continue to attend the same school they have attended for the past two years in the case of D.B., or will move to Woodman Junior High where there will be many classmates from Chinook Park in the case of A.B., instead of commencing a new school in a new country where they will be expected to speak and study in Hebrew instead of in English; and

c) They could continue to enjoy spending time with their existing friends and participating in their existing extracurricular activities.

H. Security Concerns in Israel and Fostering of the Boys Jewish Heritage [ 23 ] Ambassador Baker testified about the extent and nature of security concerns in Israel. While I agree with Counsel for the children that the boys are likely somewhat safer in Calgary than in Israel, this factor was given little weight in my decision as neither parent seemed to consider security in Israel to be a big issue. Mr.

B’s greater concern is that the boys would be required to participate in compulsary military service at the age of 18 if they resided in Israel and that this could delay the time when they were able to commence postsecondary studies. I reject Ms. B’s characterization that Mr. B permitting the children to overhear and participate in a conversation with a friend who had served in the Israeli Defence Force constituted an attempt by him to scare the boys about the IDF. On balance, I consider Mr.

B’s opposition to the prospect of mandatory military service in Israel for the boys to be a legitimate concern and a factor that weighs against the move. [ 24 ] Both parties have displayed a genuine desire to foster the boys’ Jewish heritage. While Ms. B mentioned concerns about anti- Semitic behavior in Calgary, there was no evidence presented in this regard. I am not satisfied that the boys would be the subject of discrimination or have sufficient difficulties in maintaining their Jewish heritage in Calgary to the extent that a move to Israel is supported on this basis. I also do not consider Ms.

B’s suggestion that the boys would be more likely to marry Jewish women if they move to Israel as a relevant consideration given the age of the boys. When they are older they can elect to either marry who they wish or take guidance from their parents at that time. I. Ms. B ’s Concerns about Mr. B ’s Parenting [ 25 ] Eileen Ailon provided a report in which she described Mr. B as presenting as a “friendly parent” who spoke favourably about Ms. B and her love of the boys. In their evidence, Mr. B was more positive in recognizing Ms. B as a good parent than was Ms. B with respect to Mr. B’s parenting.

Despite any concerns she has about Mr. B’s parenting Ms. B has left the boys in his care for up to a month when she has traveled to Israel. [ 26 ] Ms. B expressed concern about the boys’ living environment at their father’s home and submitted photos of the deck and some water damage in the bathroom. I am satisfied that while the physical environment at Mr. B’s home may not be up to Ms. B’s standards, that it is nonetheless acceptable. [ 27 ] Ms. B argues that it would not be in the boys’ best interests to be in their father’s primary care because he has failed to comply with court orders. Mr.

B has excuses for each alleged breach, some of which are better than others, but in any event I am not satisfied that his conduct demonstrates a blatant disregard for court orders. Ms. B also notes that Mr. B failed to provide her with a Get, a document required to be provided by a husband for a divorce to be recognized in the Jewish faith. He states that he would provide the Get when she would agree to a civil divorce.

She also asserts that he was unreasonable in failing to allow her to travel to Israel with the boys after the commencement of her mobility application and pending the hearing of this application, which refusal he notes was confirmed by this Court. I did not find any of these considerations helpful in determining what was in the best interests of the boys in this case. J. Difficulties in Ms. B and Mr. B ’s Relationship [ 28 ] Ms. B and Mr. B’s relationship prior to separation became extremely acrimonious and resulted in both parties engaging in verbal and emotional abusive behaviour towards the other.

Fortunately neither party has directed such behaviour towards the children. While much of this behaviour between the parents is regrettable, I do not find it particularly helpful in determining what is in the boys’ best interests in this case. [ 29 ] Both parents have indulged in behavior that has subjected the boys to unnecessary stress by involving them in the dispute to an inappropriate extent, as was confirmed by the boys’ counsel. Some examples of this include:

a) Ms. B served Mr. B with the divorce documents at the matrimonial home during the course of a piano lesson while the parties were all living in the same house, and where they continued to do so for a further year. Surely the commencement of divorce proceedings in this context could have been done as effectively in a less dramatic fashion.

b) Mr. B insisted on having A.B. deliver the support cheques and obtain a signed receipt from his mother. Both parents participated in this exercise. Its unclear why a canceled cheque would not have been sufficient. Moreover, neither parent seemed to have sufficiently appreciated how stressful this must have been for A.B. to have come up with alternative way of dealing with the provision of support.

c) Mr. B and Ms. B chose to communicate with each other in a manner that inevitably involved the children in their conflict. She refused to speak with him on the telephone and he refused to communicate via email/text messaging.

While each had their excuse (she found it stressful to speak with him directly and he claimed to have lacked the necessary technological skills), this inevitably lead to numerous communication problems and miscommunications and necessarily required the children to participate in this dysfunctional exercise and to act as go-betweens in delivering messages between the parents. [ 30 ] Both parties blame the other for many of the issues between them involving the children. From my perspective it appears that most of these issues were the direct result of the parties’ failure to communicate.

For example, while both parties consented to an order granted by Justice Erb on October 21, 2009 which directed the children attend for counseling at Calgary Family Services to evaluate whether counseling was needed, and to an order granted by Justice McCarthy on February 1, 2011 that the children attend counseling with Dr Mendelson, the boys’ first counseling session did not occur until January 2012. All parties now agree that counseling is beneficial for the boys and should continue. Ms. B and Mr. B each blame the other for the delays in arranging counseling.

I am satisfied that the delays in arranging counseling resulted from the conduct of both parties and their unwillingness to communicate and cooperate with each other in an effective fashion. [ 31 ] Similarly, the boys had attended the Calgary Jewish Academy until June 2010 and both parties professed a desire for that to continue. The Calgary Jewish Academy attempted to accommodate this desire by agreeing to look to each of Ms. B and Mr. B for half the arrears and half the fees for the next year. Mr. B paid his share of the arrears in August. Ms. B declined an offer by Mr.

B to put her share of the fees owing on their joint line of credit and was trying to work out arrangements for the payment of her half of the arrears with the school. When those arrangements were not finalized when school commenced she arranged for the boys to be registered at and commence school at Chinook Park in September 2010, which was supported by Mr. B.

Counsel for the parties agreed to a consent order that was granted by Justice Poelman on September 17, 2010 directing that both parties comply with the requirements of the Calgary Jewish Academy to ensure that the children were enrolled as quickly as possible, which Mr. B now states was agreed to by his counsel without instructions. By the time Ms. B made financial arrangements to secure her share, Mr. B decided that it was too late to move the boys and failed to pay his share before the September 29, 2010 deadline set by the Calgary Jewish Academy despite the terms of the consent order.

The failure to ensure reasonable timely arrangements were put in place at the Calgary Jewish Academy to ensure the boys could attend for the 2009/2010 school year was due to the conduct of both parties and their failure to communicate effectively with each other, yet both persist in blaming the other for the outcome. [ 32 ] Ms. B complains that Mr. B unilaterally enrolled the boys in piano with a teacher other than himself and that he enrolled the boys in basketball and baseball without consultation. Mr. B complains that Ms.

B will not speak with him, that he was the piano teacher and chose a piano teacher known to both, that he was facing deadlines for the sports programs and was unable to communicate with her. Obviously it is important for the parents to consult with each other and agree on what extracurricular activities are appropriate for the boys but the underlying cause of these difficulties was the parties’ inability or refusal to communicate with each other. 5. Conclusion [ 33 ] Each case must be decided based upon the circumstances.

I was referred to and have reviewed various other mobility cases, including the decisions of this Court in RB v EB , 2010 ABQB 44 ; aff’d 2010 ABCA 229 . While that decision also involved an application by a mother to move from Calgary to Israel with the children, the circumstances are quite distinguishable because that case involved a custodial parent and an access parent, whereas in this case the parties have fully shared parenting responsibilities for the past three years since separation.

Further, in that case the mother indicated that she would remain in Calgary if she was not granted permission to move with the children so the issue before the trial judge was whether it was in the children’s best interests to move with their mother (the custodial parent) to Israel which promised greater financial security or to remain in Calgary in their mother’s primary custody in an acrimonious situation facing financial uncertainty. [ 34 ] After taking all of the circumstances into account, I am of the view that if Ms.

B proceeds to move to Israel that it would be in the boys’ best interests to remain with their father in Calgary, rather than move with their mother. Both Ms. B and Mr. B are capable parents who love and are loved by their children very much. The boys will inevitably face extreme disruption in their lives through the loss of regular contact with one of their parents, with whom they spend alternating weeks and see regularly during the week they are not residing at that parent’s house. While Ms.

B has made reasonable plans for her employment, accommodation and schooling for the boys in Israel, there is always a risk plans will not work out as well as hoped for or that the boys will find the cultural changes of living in

Israel to be difficult to manage. In reaching this decision, I recognize that while the boys may be closer to their mother, they also love their father. I am of the view that it is more likely that the boys will better be able to successfully cope with suddenly living with only one of their parents if they continue to have the stability of the life they know and in which they have thrived in Calgary, rather than simultaneously facing new accommodation, a new school, new friends and new activities in a new country where they will be expected to speak a different language. [ 35 ] In conclusion, Ms.

B’s application for permission for the boys to move with her to Israel is dismissed. While I had asked the parties to provide me with their proposals, I am not satisfied that I have had a sufficiently detailed response from Ms. B to Mr. B’s proposed parenting plan if she were to relocate to Israel without the children to enable me to make a final decision on the access arrangements. I suggest that she provide a written response to that proposal by July 13, 2012.

If the parties can not agree on the parenting arrangement by July 18, 2012 then they can arrange a time to speak to this issue before me prior to July 25, 2012. Costs may also be spoken to at that time if the parties can not agree on how those should be addressed. Heard on April 23 rd to April 27 th and June 1st, 2012. Oral decision delivered on July 10, 2012. Dated at the City of Calgary, Alberta this 19 th day of July, 2012. J. Strekaf J.C.Q.B.A. Appearances: Aaron M. Vanin for the Applicant Ms. B. Jane M. Hoffman for the Respondent Mr. B Brian O. Phillips, Q.C. for the Children