Rayner v. Gratton, 2012 ABQB 617

Court of Queen ’ s Bench of Alberta Citation: Rayner v. Gratton, 2012 ABQB 617 Date: 20121005 Docket: FL14 01056 Registry: St. Paul Between: Brendon Rayner Plaintiff(Respondent) - and - Alicia Gratton Defendant(Applicant) _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In February, 2012, the parties formally consented to an order of this court establishing a two week revolving shared parenting regime. Invoking, as a material change in circumstance, the child ’ s ability to become enrolled in a pre-school program in Prince Albert, the mother now applies to change the parenting regime into one in which the father will have one week of parenting per month with the potential for expanded parenting time during the summer vacation. [ 2 ] The application is denied. [ 3 ] The February 27, 2012 interim consent order did not anticipate that either parent could bring the issue of parenting back to

court at will. Therefore, the mother must, as a pre-requisite to arguing that the proposed change is in her daughter’s best interest,establish a material change of circumstance.

She has failed to do so: not only could enrolling the child in a pre-school program beforeseen in February 2012, the availability of this six hour a week pre-school program has not altered this child’s needs in a fundamentalway: Gordon. [4] Assuming however, for the purposes of this application, that the mother has established a material change of circumstance,the court concludes that the mother has not proved that a change in parenting regime is in the child’s best interest. Generally, it is in achild’s best interest to maintain maximum contact with each of her parents: Gordon.

The mother states that one nweek a month willmaintain the child’s strong links with the father; if that were true, the court would give the father parenting time for 3 weeks a monthbecause the father’s dealings with the child are more conducive than the mother’s to advancing Parliament’s maximum contact principle.Overall however, taking into account the Gordon factors and engaging in the Hopkins analysis, at this stage, the child’s best interestsare achieved by maintaining the parenting regime agreed to on February 27, 2012.

Nevertheless, because a shared parenting regime willbecome unworkable once the child is ready for kindergarten in September 2013, a new parenting regime will have to be determined priorto that date. The mother will have responsibility for setting down a special chambers hearing or trial to establish a parenting regimecommencing September, 2013. Cases and authority cited [5] By Mr. Rayner: Gordon v Goertz (SCC), [1996] 2 S.C.R. 27, 1996 CarswellSask 199; Cool v Cool 2009CarswellNS 87 (NSSC) [6] By the court: Hopkins v Hopkins 2011 ABCA 372 1. Background [7] The parties’ daughter was born in January 2008.

The parties separated in 2009. By consent order agreed to in the ProvincialCourt in September, 2010, the parties agreed to a shared parenting regime on a week on, week off, basis. The parties resided withinminutes of one another in the Bonnyville area until the Fall of 2011 when the mother, who had developed a relationship with anotherman, unilaterally decided to move to Prince Albert, Saskatchewan, to be with that man, who is now her fiancé, who has a 4 year old son.Ms. Gratton expects to be married in the near future and is expecting a child in the Spring of 2013. Mr.

Rayner is in a stable conjugal-type relationship but he has decided, at least for the time being, not to cohabit with his partner. When the mother moved toSaskatchewan, the parties initially agreed between themselves to convert the shared parenting regime from a weekly basis to a bi-weeklybasis. Subsequently, the mother brought an application in Provincial Court to become the child’s primary caregiver. In support of thatapplication, the mother had the child make recorded statements to the effect that she would rather live with her mother than with herfather.

The father had the Provincial Court proceedings moved to the Court of Queen’s Bench, where he brought an application,returnable on February 27, 2012, for parenting, for child support, and for exclusive possession of the conjugal home. On the day set forthe hearing of the application, counsel informed the court that they had agreed on a consent order, which they would prepare and send infor signature, in the expectation that negotiation would “resolve the balance of the application”.

The “Interim Consent Order” datedFebruary 27, 2012, and filed on March 12, 2012, established a two week on/two week off shared parenting regime and stated that the mother would be solely responsible for the transportation of the child to and from the parenting exchanges. The remaining term of theorder adjourned the balance of the matters.

On June 4, 2012, the mother brought this application for a change in the parenting regime. [8] Both parties have extended family in the Bonnyville area. [9] Both parties have careers in the graphic arts. [10] Each of the parties has been continuously and actively involved in their daughter’s life. While the mother was finishing heracademic training for her career and living just outside Edmonton for that purpose, the father parented the child during the week and themother returned to Bonnyville for week-ends.

In the Bonnyville area, the parties agreed on a daycare provider who has been taking careof the child for the past 3 years. In Prince Albert, the mother has arranged for a daycare provider who has been taking care of the childsince the Spring of 2012. That same daycare provider has provided some information to the court in which she states that the child “willbe attending” a specific school in Prince Albert in September, 2013.

[11] The parties’ child calls her mother’s fiancé “Daddy Marty”. 2. Has the mother established a material change of circumstance? [12] The mother has not established a material change of circumstance. [13] This is not a situation where the court is entitled, by reason of the proceedings themselves, to consider parenting afresh.

Thecourt might have been in that position if the interim consent order entered into between the parties had explicitly stated that parentingcould be reviewed at any time, or if it had said that the interim consent order was to be in effect until further order of the court, or if ithad used any analogous wording to indicate that the parties were not intending a usual interim order, that is one which would apply untila trial of the parenting issue.

Indeed, the parties’ intention that this should be the “usual” type of interim order was made clear to thecourt by the statement to the effect that negotiations would be undertaken to resolve the balance of the then current application, whichincluded property issues.

In the absence of any language to the effect that the court had the authority to consider parenting afresh at therequest of either parent, a party applying to vary the February 27, 2012 consent order must establish a material change of circumstance. [14] The test for establishing a change of circumstance in relation to parenting was set out by the Supreme Court of Canada inGordon: 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. [15] Little has changed in the situation of these parties and their child since February 27, 2012. The mother’s attachment to PrinceAlbert was established in the Fall of 2011 and therefore existed well before February 27, 2012.

Since that date, the mother has obtainedthe services of a new daycare provider in Prince Albert, but that is a destabilizing factor in the child’s life, at least in the sense that itintroduces a new person’s into the child’s orbit. The mother’s pregnancy may have two effects - it may herald an upcoming alteration ofthe mother’s ability to meet the needs of her daughter because of the change in the quality of time that the mother will have available, atleast in the short term, for her daughter, and it may affect the child’s perception of her place in her mother’s life.

If anything, thesechanges suggest that in a time of important family re-structuring, it might be more stabilizing for the child to spend more time with herfather. [16] The availability of a 6 hour a week pre-school program is not a material alteration in the child’s universe. Undoubtedly, pre-school can be helpful to a child, especially with respect to socialization; the particular pre-school chosen by the mother also includessome general preparation for entering a French immersion program, which will be of advantage to this child.

However, as the pre-schoolflyer shows, what is available varies according to the wishes and needs of the parents: a child of this age could be using the pre-schoolservices for 2 hours a week or 10 hours a week, depending on what the parents sign up for. The program offered is not a school with apedagogical program building from block to block where the missing of one block would be detrimental to a child’s overall educationaldevelopment. This pre-school program is much more like the before and after school care which is also a service which this organizationprovides.

It is a nice additional feature in the child’s life, but it is certainly not material to this child’s wellbeing. [17] Moreover, the changes noted - other than the mother’s pregnancy - were certainly foreseeable when the parties were beforethe court in February, 2012. [18] In

summary, the mother has not met the threshold test of establishing that there has been a material change of circumstancesince the consent order of February 27, 2012. 3. Has the mother established that it is in the child’s best interest to reduce the father’s parenting time?

[ 19 ] Even assuming that the mother had established a material change of circumstance, I conclude that the mother has not established that a change in the existing parenting regime is in her child ’ s best interests. [ 20 ] This case is far from being a classic mobility case which is governed by Gordon . First, in the circumstances here, the Family Law Act - rather than the Divorce Act - applies. However, the case law establishes that the principles which apply in the latter statute also apply in the former when dealing with parenting issues.

Section 18 of the provincial statute states: 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. [ 21 ] Although the general tenor of the federal and provincial legislation is very similar, the provincial statute makes explicit mention of certain factors that are not specifically identified in the Divorce Act .

The Family Law Act makes specific reference to family violence and to civil and criminal proceedings that affect the child; however, there are no violence issues here, no criminal proceedings, and no civil proceedings which involve in any way the welfare of the child. While the property issues which are currently being contested by the parents undoubtedly make the relationship between them somewhat more tense, there is nothing in those proceedings which directly affects the interests of their daughter.

The provincial statute mentions that linguistic upbringing and heritage should be considered; here, both the mother and the father are committed to, and will find ways of enhancing, the child ’ s French linguistic background. Generally, therefore, the same analysis applies here as would be made in a Gordon situation. [ 22 ] Second, this is not a case where the mother had custody of the child before the mother unilaterally moved to Saskatchewan.

Therefore, the fundamental concerns in Gordon about whether there is a presumption in favour of the custodial parent ’ s wish to move simply don ’ t arise here: this is a situation in which both parties had and have equal custody rights and practice. Therefore, the wishes of each of the parents must be given equal respect and consideration. [ 23 ] Nonetheless, the Gordon framework provides a useful basis for the analysis that must be undertaken to discern the child ’ s best interests in this situation.

I begin with the proposition that “ the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child ” : Gordon . [ 24 ] The mother argues that the parties ’ daughter will be able to maintain full parental links with her father if the child essentially moves to Saskatchewan.

If the mother honestly believes that, then she must also honestly believe that the reverse is also true - that the child will maintain adequate links with her if the child were to spend 3 weeks a month in Alberta with her Dad and this is a result which I have contemplated. However, rather than focus solely on the nature of the maximum contact principle, I should go on to consider the various factors which the Supreme Court and our Court of Appeal have determined should be addressed by a judge considering a mobility issue.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

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

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

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

d) the views of the child; (

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

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

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [ 25 ] In addition to the above factors identified in Gordon , in Hopkins our Court of Appeal has stated that a judge should add a specific type of consideration to those issues: This court has stated in Spencer v. Spencer, 2005 ABCA 262 , 257 DLR (4th) 115 ("Spencer") , and in MacPhail v.

Karasek, 2006 ABCA 238 , 273 DLR (4th) 151 , that the analysis in determining whether something is in the best interests of the child must explore whether it is in the children's best interests to remain with Parent A without Parent B or to move with Parent B without Parent A. This court has expressed serious doubt as to the propriety of asking a parent whether he or she will stay if his or her application to move with the children has been refused. [ 26 ] As indicated above, the last parenting order of this court in these proceedings was a consent order.

Therefore, there are no findings of a judge with respect to parenting. I have commented earlier on the new circumstances invoked by the mother. The wishes of each parent must be given great respect. [ 27 ] The existing parenting arrangement is one where, by agreement between themselves presumably as representing the best interest of their daughter, the parents share parenting. The only evidence before the court on this application is that the child is, understandably, equally attached to both parents; the questioning of the affiant Hupalo only confirms this conclusion.

This is one of the situations that falls into the general category where it is desirable to maximize the contact between the child and each parent. This child is too young to express views that will be taken into account by a court in making a parenting decision. Here, the mother ’ s move to Saskatchewan was not tied to any ability to meet the child ’ s needs.

At this stage of her life, there would be no real disruption to the child if she were to live in Saskatchewan for 3 weeks out of 4; she is of an age where she will have a good memory of her extended maternal and paternal Alberta families even if she were to spend more time in Saskatchewan. Since she is not attending school at this time, there would be no disruption for the child with respect to school; since she has been travelling to Saskatchewan for some months now, she has undoubtedly acquired some familiarity with her new Saskatchewan surroundings.

In other words, the Gordon analysis leads to a conclusion that no harm to the child could be predicted from a move to Saskatchewan. [ 28 ] I turn next to the Tompkins analysis. In some ways, that analysis requires an assessment of whether a move will enhance a child ’ s life; that is a potentially more productive type of analysis since every move involves some disruption but not every move involves an enhancement.

There are some differences between the cocoons which envelop this child in Alberta and in Saskatchewan: the major differences are that the Alberta cocoon is much larger, richer in the sense of being more complex, and much more stable. All of the child ’ s relatives, friends and long term caregivers live in Alberta except her mother. In Saskatchewan, the cocoon consists of her mother, her mother ’ s fianc é and her mother ’ s fiance ’ s son; undoubtedly, in time, that cocoon will also grow larger, but at the moment, there is no comparison in the richness and complexity of the two situations.

However, the main difference between the Alberta situation and the Saskatchewan situation lies in the differences of approach between the mother and the father. Each of the parents is a loving, capable, parent. However, by involving a 4 year old child in the custody dispute by getting the child to make a video ’ ed statement

concerning wishes, the mother has demonstrated that she has not yet internalized the necessity to keep the child out of the parents ’ fray. Moreover, the Saskatchewan daycare provider ’ s firm reference to the child ’ s target school in September, 2013 suggests that this mother, who is sharing parenting with the father, is not, as is expected in a shared parenting relationship, making decisions which affect the child cooperatively with the other parent, but is rather making decisions on her own which she is then attempting to impose unilaterally on the father.

This behaviour suggests that, in the long run, the mother will not attempt to ensure that the child has maximum contact possible with the father but will rather attempt to more and more fully integrate this child into the mother ’ s new family. [ 29 ] In

summary, the Tompkins analysis leads to the conclusion that, in terms of the child ’ s overall future development of emotional maturity grounded in loving stable relationships with both parents, it might be better for her to have more parenting time with her father. [ 30 ] Despite these reservations which suggest that a greater parenting responsibility should be given to the father, I have concluded that, at this stage of the child ’ s development, there is no need to change the shared parenting regime.

Such a regime will ensure that, for now, maximum contact by the child with each of her parents, and there is no countervailing factor which outweighs that important objective. [ 31 ] Nevertheless, the court observes that it will be impossible to maintain a shared parenting regime in September, 2013 when this child will be ready to enter kindergarten. Steps must be taken now to ensure that, if the parents are not agreed on a parenting regime once the child reaches school age, then a mechanism is in place to allow the court to make that decision.

Since the mother moved to Saskatchewan, she is the one who will have the responsibility of ensuring that this matter is brought back to court for a special chambers application or a trial, well in advance of September, 2013. I am advised that St. Paul has many slots available over the next quarter for even lengthy special chambers applications.v Back up arrangements should be made with the September 2013 deadline in mind. 4. Costs [ 32 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 2 nd day of October, 2012. Dated at the City of St.

Paul, Alberta this 5 th day of October, 2012. J.B. Veit J.C.Q.B.A. Appearances: John Wiebe, Wood & Wiebe for the Applicant Vic Findlater, Lakeland Law Group for the Respondent