K.A.W. v. M.E.W., 2012 ABQB 463

Court of Queen ’ s Bench of Alberta Citation: K.A.W. v. M.E.W., 2012 ABQB 463 Date: 20120717 Docket: 4806 018450 Registry: Lethbridge Between: K.A.W. Plaintiff - and - M.E.W. Defendant Restriction on Publication: By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. See the Family Law Act, s. 100. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.H. Langston _______________________________________________________

[ 1 ] The Applicant, K.A.W., seeks to return to Colorado with her four children, currently one aged eight and triplets aged ten. Her husband, M.E.W., opposes her application to move the children out of Alberta. He also very recently filed an application to have day-to- day care and control and primary residence of the children should they stay in Canada. [ 2 ] K.A.W., a United States citizen, was married in July of 1997 to M.E.W. The couple lived in the United States for the first 13 years of their marriage.

Although the reasons that they moved to Canada are in dispute, the entire family moved to Alberta in July of 2010. This move did not resolve the couple’s marital problems, and they separated in May of 2011. [ 3 ] M.E.W. did not have his own home from May to November of 2011, and he admits that he did not bring the children into his residence much, if at all, during that time period. Since November of 2011, the evidence before me indicates that for the most part, K.A.W. has been the primary caregiver, with M.E.W. taking the children roughly one and a half to two days per week.

During the course of the marriage K.A.W. was also the primary caregiver. [ 4 ] K.A.W. is currently legally in Canada on a Visitor’s Permit which expires in February of 2013. She is currently unemployed, and as a term of the Visitor’s Permit, she is not able to work any longer than a six-month period. [ 5 ] The couple has jointly commissioned the preparation of a legal opinion from Matthew Sommerfelt, a lawyer who practices immigration law. The purpose of the joint retainer of Mr. Sommerfelt was to comment on the possibilities of K.A.W.’s immigration prospects.

His detailed opinion essentially concludes that given her current situation, the prospect of K.A.W. currently being able to obtain permanent legal status in Canada is remote. It is possible that she could stay in Canada as a temporary worker for four years, but this would require K.A.W. to find an employer and meet the necessary government requirements. If successful, K.A.W. would then need to renew her temporary worker status on a yearly basis.

After four years, if K.A.W. was not able to obtain a more permanent status, she would be required to leave Canada. [ 6 ] If she were able to return to Colorado, K.A.W. initially indicated that she and the children could reside with her parents until she was able to find employment and obtain housing on her own. Initially, she will also be able to access government assistance, something she is unable to do here.

She also states that she has a wide support network of family and will be able to access support services through the church in Colorado. [ 7 ] K.A.W.’s parents are elderly and unwell, and live in a very small house while receiving assistance. Perhaps recognizing this is not the best environment for her children, K.A.W. has now produced a letter from her aunt, P.A., who has offered to house K.A.W. and her children and financially support them in a stable environment. The description by P.A. is very positive.

K.A.W. has also produced a letter from SOS Staffing indicating that her resume and experience make her extremely marketable, and that there are openings in oil and gas, wind energy, accounting and clerical support. K.A.W. was previously employed in an office setting when she lived in Colorado. [ 8 ] M.E.W., a Canadian citizen, does have the ability to work in Canada. While living in the United States he ran a viable business in the construction industry. He deposes that upon moving to Canada in 2010, his family provided him with approximately $100,000.00 to set up a business here.

Despite the fact that the move occurred two years ago, M.E.W. still does not have a viable business, nor any sustainable income. He now claims to have made no income in 2010. His filed income tax return for 2011 shows income of approximately $4,500.00, and he claims that he should have earnings at about the same level in 2012. [ 9 ] Despite now claiming these low incomes, M.E.W. executed Minutes of Settlement in August of 2011 in which he disclosed that he had income of $50,000.00 in 2010, and that he would pay spousal support of $1,653.00 per month and child support of $1,147.00 per month.

He states that he only agreed to these amounts because his former solicitor told him they could be changed. [ 10 ] In 2011, M.E.W. paid approximately $8,800.00 in total support payments. He has paid nothing in the first six, perhaps seven, months of 2012. Fortunately, K.A.W. is receiving support from her church. [ 11 ] As a result of K.A.W.’s application to move, an Assessment was prepared pursuant to Family Law Practice Note 7 by Bonnie Murray, a Registered Family Mediator. Ms. Murray conducted home visits. She also interviewed both parents, all the children, and B.H.

When M.E.W. and K.A.W. sought assistance from their church in Colorado, they came to know B.H. She then moved to Alberta shortly

after the couple’s separation, and upon the divorce being finalized, M.E.W. intends to marry B.H. B.H.’s presence causes K.A.W. stress, and even B.H. stated that she assumed that K.A.W. would do better if she left Alberta. Ms. Murray also agreed that a move to Colorado would reduce the stress K.A.W. feels in respect to B.H. [ 12 ] Not surprisingly, each parent raised concerns about the others’ parenting skills.

For example, K.A.W. expressed concern about M.E.W. giving N.A.W. some of his own prescription medication in order to determine if N.A.W. had ADHD, and M.E.W. expressed concern about K.A.W. hitting the children when she was angry.

No further explanation is given beyond this comment. [ 13 ] Given their ages and love for their father, I also do not find it surprising that all the children indicated that they don’t want to leave their friends and move to Colorado. [ 14 ] Three of the children expressed concern about being hit by their mother when she was angry, but this seems to have occurred more when the parents were living together, for only N.W. stated that his mother still continued to hit them occasionally. N.A.W. made no mention of hitting at any time.

The issue was not raised with K.A.W., so whether the hitting is a form of discipline or is the result of something else, such as frustration or anger control issues, is not known. Ms. Murray recorded that at K.A.W.’s home visit, “The atmosphere was relaxed and the children were responsive to comments and questions from their mother.” [ 15 ] It appears that Ms. Murray questions whether the move to Colorado would be in the child’s best interests for several reasons.

One of the main concerns was that K.A.W.’s stress levels would be increased if she and the children are to live with her elderly, unwell parents in cramped quarters, thus increasing the risk that K.A.W. will strike the children. However, since Ms. Murray produced her Assessment, K.A.W. has introduced evidence that she and the children will be able to live with her aunt in a much more stable and positive living environment. [ 16 ] Ms. Murray is also concerned that a move will undermine the stability achieved since separation.

The separation occurred in May of 2011, meaning that the current living environment has only existed for just over one year. Given K.A.W.’s precarious financial situation, there is no evidence that she will be able to retain her current living quarters if she stays in Alberta. Further, there is evidence that the children have moved seven times in the last ten years. If the move to Colorado is one which may finally give them some long term stability over their current situation, then it is a factor which I must consider. [ 17 ] Ms.

Murray expressed concern that a move could compromise the children’s financial security. Quite frankly, they have no financial security here - K.A.W. is living off the charity of a church and M.E.W. has given her no financial support for at least half a year. There is evidence that support from family, the church, and the state will be available to K.A.W. in Colorado. While Ms.

Murray states that “it is anticipated that government services for the children will not be as readily available as they are here”, there is no rationale given for this statement, and it does not accord with the evidence before me. [ 18 ] Ms. Murray expressed concern that K.A.W. will have no assistance and will be a single mother, whereas M.E.W. will have the assistance of B.H. While this may be the case, it is more significant that currently, for roughly five or six days out of every week, K.A.W. is a single parent, and Ms. Murray raised no concerns when she conducted her home visit. [ 19 ] Ms.

Murray highlighted the fact that the children feel that if their mother becomes stressed she will hit them. This is definitely a concern. However, there are many other concerning aspects of Ms. Murray’s report: 1. N.W. stated that if he was worried or afraid, he would not go to either of his parents, and that he feels that if he had done more, his parents may still be together. 2. The daughter states she doesn’t talk to anyone, including her parents, when she is mad or sad. 3.

Rather than taking his son N.A.W. to a doctor, M.E.W. chose to give N.A.W. some of his adult ADHD medication in order to test his theory that N.A.W. might also have ADHD.

[ 20 ] Overall, Ms. Murray’s report raises concerns about the safety, security and well-being of the children if K.A.W. is permitted to move them to Colorado, but some of those concerns are based on incomplete information. Other concerns identified in her report do not override areas of concern which exist regardless of where the children are living. Overall, the concerns and comments expressed by Ms. Murray do not outweigh concerns raised on the totality of the evidence before me. [ 21 ] In order to address the issues raised by Ms.

Murray, one of the things required by these children is the financial security which can provide them with a long-term stable environment. Given the fact that K.A.W. is a United States citizen, providing financial stability while in Alberta is extremely difficult for her to do. M.E.W. has the legal capacity to work here, and based on his past experience, presumably has the entrepreneurial skills and construction industry experience to earn a good wage, whether by running his own business or by working for someone else. In the two years since moving to Alberta, he has done neither.

In fact, he has provided less and less financial stability for his children, as his support payments have decreased from $8,800.00 in 2011 to nothing in 2012. This is despite the fact that he admits receiving $100,000.00 from his own family in 2010. [ 22 ] There is in place, currently, an Interim Order of this Court dated February 14, 2012, which grants joint custody to the parents with K.A.W. having primary residential care of the children. M.E.W. is to have access every weekend from Friday afternoon until Saturday until 7:00 p.m.

The Order directs child support be paid to K.A.W. in the amount of $1,147.00 per month and spousal support in the amount of $750.00 per month. These payments are based on an estimated income of $50,000.00. [ 23 ] A parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances effecting the child. To meet this threshold a Judge must be satisfied of the following: 1. That there is a change in the child’s circumstances or the parents’ ability to meet the child’s needs; 2. The change materially effects the child; 3.

The Judge making the original Order did not foresee the change or could not reasonably have contemplated it. [ 24 ] The evidence before me establishes that the parties moved to Alberta as a family. Separation took place ten months later, with all parties remaining in the province.

The only Court Order relating to custody and access is the Interim Order of February 14, 2012, which did not contemplate either parent moving from Alberta. [ 25 ] It is settled law that a relocation which involves a significant geographical separation of the parents will usually be a material change in the circumstances, since it may effect the frequency, duration and quality of access.

I am satisfied that K.A.W.’s proposal to move to Colorado is a material change in circumstances which requires a fresh inquiry to determine the children’s best interests, having regard to all relevant circumstances relating to the children’s needs and the ability of the parents to satisfy those needs. [ 26 ] The focus of the inquiry is not the interests and rights of the parents, but rather the interests of the children. There is no legal presumption in favour of the custodial parent.

Conversely custodial parents cannot be relegated to a position of subservience and restricted solely to the place where the access parent resides. The ability of a custodial parent to move elsewhere with the children is not dependent on establishing that the move will enhance or further the best interests of the children. Mobility is a feature of our society. It is unrealistic to expect that all separating parents will forever remain in the same location. [ 27 ] Factors which are relevant to an application such as this include the following: 1.

The existing custody and access regime and the relationship between the children and the custodial parent and the access parent; 2. The need to maximize contact between the children and both parents;

3. The views of the children as expressed or determined; 4. The reason for the proposed move; 5. How that move impacts on the ability to meet the needs of the children; 6. The effect of the change on the children; 7. Disruption in relation to family, schools and community. [28] The move to Canada was motivated by economics, the result of a failed business venture in the United States. It was alsomotivated by a desire to repair a relationship which had been damaged, in part, by the presence of B.H. No evidence suggests the partiescame to Canada to facilitate a separation or a divorce.

However, within one year of coming to Canada the parties did separate. K.A.W. nolonger has the advantage of her husband’s sponsorship and her continued presence in this country is in question. She has no support inplace and is incapable of changing her situation. She has few options. She can remain in Canada, in a tenuous predicament, with anunpredictable future, or she can return to the United States where support systems are in place by means of family, church, community,government and potentially employment. [29] K.A.W. has been and continues to be the primary caregiver to the children.

While I accept that men are as well suited andequipped to parent children, the history of this family suggests that K.A.W. is the most well equipped and experienced in this regard. [30] The friction between the children and K.A.W., as described by Ms. Murray, is a matter to consider. However, in my view thefactors causing K.A.W.’s stress are likely to diminish when she is in an environment which allows more access to services and supportwhich provides her with a degree of control and certainty. Her current situation is anything but certain.

Not only is her status in Canada indoubt, but her present financial situation is chaotic, due in no small measure to the inability of M.E.W. to support her and the children. [31] I am satisfied that the children love and are attached to each parent and the geographic separation from one parent will be verydifficult on the children. The children have moved frequently and they are entitled to relief from this gypsy-like lifestyle.

However, theyare also entitled to certainty, both emotionally and financially. [32] The current situation is one in which M.E.W. has demonstrated little ability to provide for his family and the mother cannot. [33] After considering the factors as set out in Gordon v Goertz, (SCC), [1996] 2 SCR 27 the best interests of thechildren are met by remaining with the mother who will move to Colorado. This change in the location of the parties will necessitatesome innovative access provisions. I leave it to counsel to negotiate the terms.

If they are unable to do so they can return to Court onnotice. [34] The focus of this application was the pending move of K.A.W. to Colorado. While the Briefs discussed the issues of child andspousal support, counsel did not direct their energies to those issues. This is apparent having regard to the existing Interim Order andM.E.W.’s inability to meet his obligations under that Order. In argument counsel for the father suggested that his income should now befixed at $23,000.00.

I question the validity of this proposal given his past history. [35] I invite counsel to provide further argument, by way of Briefs and accompanying Affidavits in relation to the matters of childand spousal support. Those arguments may need to take into consideration K.A.W.’s financial situation once she relocates to Colorado.Accordingly until such time as counsel are able to provide further argument I make no change or variation to the existing Interim Order.

[ 36 ] K.A.W. has been successful in this application and she will have her costs. Heard on the 9 th day of July, 2012 Dated at Lethbridge, Alberta this 17 th day of July, 2012. J.H. Langston J.C.Q.B.A. Appearances: Family Law Office Mary Ann Gerhart for the Plaintiff North & Co. LLP Scott A. Harling for the Defendant