T.F.H. v. N.H., 2012 ABQB 654

Court of Queen ’ s Bench of Alberta Citation: T.F.H. v. N.H., 2012 ABQB 654 Date: 20121029 Docket: 4806 018265 Registry: Lethbridge Between: T.F.H. Plaintiff - and - N.H. Defendant Corrected judgment: A corrigendum was issued on November 7, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. ______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.A. Jerke _______________________________________________________

Introduction [ 1 ] N.H. and T.F.H. were married in October 2001. They have three children: an eight year old, and six year-old twins. The family lived in Tottenham and Pickering, Ontario until January 2008 when T.F.H. moved to Lethbridge to accept a job. N.H. and the children joined him in November 2008. [ 2 ] T.F.H. and N.H. separated in January 2011.

They and the children remained in the matrimonial home. [ 3 ] T.F.H. started these proceedings on February 23, 2011 by filing a Statement of Claim and an application seeking joint custody and day-to-day care and control of the children, and allowing N.H. reasonable access. An Order was granted on March 8, 2011, restraining N.H. from removing the children from Lethbridge pending hearing of the application. N.H. applied on April 7, 2011, for joint custody and day-to-day care and control of the children allowing T.F.H. reasonable access.

She also applied for an order granting her leave to relocate with the children to Ontario during the summer of 2011. An Order was granted on August 16, 2011, declining N.H.’s request to relocate with the children to Ontario. The Order did not deal with custody, access or parenting. N.H.’s appeal was dismissed by the Court of Appeal on December 8, 2011. [ 4 ] The family continued to live in the matrimonial home until I granted an Order on December 20, 2011, giving N.H. exclusive possession. T.F.H. moved very early in January, 2012.

I also granted N.H. and T.F.H. joint custody of the children, and made an Interim Without Prejudice shared parenting Order. I appointed a parenting coordinator to develop an interim parenting plan agreed to by the parties, and failing agreement, to make recommendations as to what parenting plan was in the best interests of the children. Various forms of shared parenting were tried, and a recommendation with an arrangement for shared parenting was made on February 29, 2012. [ 5 ] N.H. learned that T.F.H.’s employment terminated. She immediately accepted a job offer in Pickering.

On April 19, 2012, N.H. filed an application seeking emergency permission to relocate with the children to Pickering, Ontario. At the application on April 25, 2012, she advised that she was relocating to Pickering, and T.F.H. advised that he had a new job starting in Lethbridge on April 30, 2012. I made an Order directing the issues of parenting and the children’s relocation to Pickering to be heard at a Special Chambers Hearing on July 23, 2012.

Also on April 25, 2012, I made another Without Prejudice Interim parenting Order to take into account N.H.’s relocation. [ 6 ] Since April N.H. has moved to Pickering and by May 22, 2012, she started work there. T.F.H. and the children are now living in the matrimonial home. [ 7 ] At the July Hearing I made an Order for a Practice Note 7 Assessment dealing with specific issues. Before starting the Assessment, questions about how to complete the Report were raised by the Expert Assessor.

On September 5, 2012, I vacated the Assessment requirement because it appeared that by this time no real benefit would be gained from the Report, and it would entail considerable expense. [ 8 ] The matters to be addressed in this decision are whether the children should be relocated to Pickering, and what the parenting arrangements should be. [ 9 ] This case has several unique features: - An Interim Order, upheld by the Court of Appeal, has already been granted denying relocation of the children to Ontario. - There is no agreement and no Order for custody, access or parenting. - N.H., who is the Applicant, has already moved to Ontario. - N.H.’s move to Ontario includes a change of status because she now has full-time employment outside of the home. - This Court is now asked to make an interim, not a final Order, on the issues of parenting and relocation.

[ 10 ] For the reasons that follow, I conclude that on an interim basis, N.H. and T.F.H. will have joint custody of the children, who will remain in Lethbridge.

In reaching this conclusion, I have considered the following questions: 1) Is the Court precluded from hearing this application as a result of the previous relocation application? 2) Does the opinion of the custodial parent have preference over the opinion of the non-custodial parent? 3) What is the test in an initial custody and access application where relocation is an issue? 1) Is the Court precluded from hearing this application as a result of the previous relocation application? [ 11 ] T.F.H. contended that the issue of relocation of the children had already been judicially determined and could not be re- opened.

In her decision for the Court of Appeal, Paperny J. noted that the August 2011 decision was an interim Order only on the issue of the relocation, and did not address parenting. She stated that the issue of mobility could again arise in conjunction with other issues as the circumstances of the parents and children emerged: Hopkins v Hopkins , 2011 ABCA 372 at para 9 . [ 12 ] In the special chambers application on July 23, the question of mobility arose in conjunction with the interim determination of parenting.

Thus, I am not prevented from considering relocation. [ 13 ] While it is not necessary to find a change of circumstances, it is worth noting that since the decision of the Court of Appeal there have been some important changes: - N.H. has moved to Pickering and established a new home; - N.H. now has full time employment; - N.H. has moved out of the matrimonial home, and T.F.H. now lives there with the children; - T.F.H. has a new employer; - A parenting coordinator has recommended a plan for shared parenting. 2) Does the opinion of the custodial parent have preference over the opinion of the non-custodial parent? [ 14 ] N.H. contends that because she is the primary caregiver parent, she is the equivalent of a custodial parent, and her view is entitled to great respect.

Her view is that it is in the children’s best interests to move with her to Pickering. [ 15 ] The flaw in her argument is that N.H. is not now the primary caregiver parent. By August 2011, Romaine J. could find no distinction between the parents as they both remained living in the matrimonial home after separation. Likewise there is no distinction where the parents are attempting, shared parenting.

I find N.H.’s view is not entitled to any preference. 3) What is the test in an initial custody and access application where relocation is an issue? [ 16 ] On an application for interim custody of or access to children the Court must consider only the best interests of the children by reference to the condition, means, needs and other circumstances of the children: s.16(8) , Divorce Act , RSC 1985 c 3.

The Court must give effect to the principle that children should have as much contact with each parent as is consistent with the best interests of the children: Divorce Act, s.16(10). [ 17 ] In a parental relocation case, the Court must determine what is in the best interests of the children by considering a number of factors:

A. The existing custody arrangement and the relationship between the children and the custodial parent. B. The existing access arrangement and the relationship between the children and the access parent. C. The desirability of maximizing contact between the children and both parents. D. The views of the children. E. The custodial parent’s reason for moving only in exceptional cases where it is relevant to that parent’s ability to meet the needsof the children. F. The disruption on the children of a change in custody. G.

The disruption on the children consequent on removal from family, schools and the community that he/she has come to know. Gordon v Goertz, (SCC), [1996] 2 SCR 27 [18] These factors should be considered, with appropriate modifications, in an initial custody and access determination whererelocation is in issue: Nunweiler v Nunweiler, 2000 BCCA 300. The analysis must explore whether it is in the children’s best interests toremain with T.F.H. in Lethbridge without N.H. or to move with N.H. without T.F.H. to Pickering. I will review each factor. A and B.

The Existing Custody and Access Arrangement and the Relationship Between the Children and the Parents [19] On August 16, 2011, Romaine J. found N.H. was the primary caregiver for the children when the parties moved toLethbridge, but T.F.H. has been very involved in childcare and has a close and constant relationship with the children. She found thatboth parents clearly love their children, are good parents, and both want to continue to be involved in their lives. She found that nodistinction could be made between the parents because since the separation they all continued to live in the same house.

My previousorder was made on a without prejudice basis pending a decision on the interim application. Because of that Order, T.F.H. and N.H. wereattempting shared parenting. [20] In April 2012 N.H. and T.F.H. were sharing parenting of the children, although N.H. still did not agree with a shared parentingregime. The parenting coordinator reported that N.H. and T.F.H. agreed to share the legal responsibility for making important decisions.She described the schedules the parents tried and that they were both committed to providing the children with a

schedule that best mettheir needs, provided stability, was easy to follow, and was predictable. The parenting coordinator did not directly recommend sharedparenting as compared to some other custody/access arrangement, but she did recommend a form of shared parenting in the event N.H.and T.F.H. could not agree on a schedule. The plan contemplated N.H. remaining in Lethbridge.

By April 19, N.H. conceded that sharedparenting was reasonable if she had appropriate employment, and she now supports shared parenting if T.F.H. moves to Pickering. [21] The problem now is that having the children remain with T.F.H. without N.H., or move with N.H. without T.F.H. will disturba shared parenting arrangement. C. The Desirability of Maximizing Contact Between the Children and Both Parents [22] There is little to assist in determining where the children should live to best maximize contact with both parents. Either way,

both the children and the non-custodial parent will have to travel to maximize contact. Travel costs can be considered in connection with support obligations as a means of facilitating contact. [ 23 ] T.F.H. earns more income than N.H., but the remaining facts are relatively balanced: both parents are employed, have family and/or friends who will provide support and assistance, and have a home established. [ 24 ] T.F.H. contends that N.H.’s attitude and statements support the conclusion that she intends to minimize T.F.H.’s role in the children’s lives.

The evidence is that N.H. did not want to move to Lethbridge, and she believed the move was temporary. She wanted to, and has now, moved back to Pickering. Except for brief periods she has never wavered from her resolve to return to Pickering, but she has worked within the legal system and followed all procedures and orders. She has not taken matters into her own hands and relocated without or in spite of obligations and requirements. Further, even though she did not agree, she cooperated with an attempt to share parenting. I do not find that N.H. intends to minimize T.F.H.’s contact with the children. D.

The Views of the Children [ 25 ] The children are quite young so relatively less weight is given to their views. In addition, no specific independent evidence of their views was provided to the Court. Each parent gave evidence of the children’s thoughts, but this evidence is somewhat contradictory, and not conclusive. [ 26 ] The parenting coordinator met with each child after T.F.H. moved out of the matrimonial home, and reported that she thought the children were managing the change well.

There is no evidence on the children’s views since N.H. relocated to Pickering. [ 27 ] In these circumstances the views of the children are of very little assistance. E. The Custodial Parent ’s Reason for Moving Only in Exceptional Cases Where it is Relevant to That Parent ’s Ability to Meet the Needs of the Children [ 28 ] I consider this factor from the perspective that N.H. and T.F.H. were sharing parenting. There are unique features to the mobility question because the family moved to Lethbridge in 2008.

N.H. applied in 2011 to relocate, and she moved to Pickering in May 2012. [ 29 ] T.F.H. relocated to Lethbridge to accept a better job. I conclude that T.F.H.’s decision to move to Lethbridge improved his ability to meet the needs of the children.

T.F.H.’s parents are now here in Lethbridge and they are willing to continue supporting and assisting with the children as they have for many years, and there is no question of his ability to care for or meet the needs of the children. [ 30 ] N.H. offers two reasons for her move to Pickering: employment and support. [ 31 ] N.H. was employed in Lethbridge for five months doing shift work. She quit that job, and states she has been diligent in her search for employment, without success.

Although there may well be other work available for N.H. in Lethbridge, there may not be many jobs here within her particular area of expertise and experience. The job she has in Pickering is in her area of expertise; it is the same job she used to have there. [ 32 ] N.H. has family and friends in Pickering who will support and assist her, and has a solid plan to care for the children in Pickering. She says she will be happier there. Her plan addresses the needs of the children, including school, extra-curricular activities and so on, just as T.F.H.’s plan addresses the children’s needs in Lethbridge.

F. The Disruption on the Children of a Change in Custody [ 33 ] Because the parties were sharing parenting, disruption of custody cannot be avoided. [ 34 ] Unique to this case is that N.H. has already relocated. There is no evidence of any specific effects of that disruption on the children while they have remained living in Lethbridge and travelled to Pickering. G.

The Disruption on the Children Consequent on Removal From Family, Schools and the Community that He/She has Come to Know [ 35 ] N.H. concedes that there will be some disruption on the children if they relocate to Pickering, but that it will be quickly overcome because they were born and lived there before coming to Lethbridge, they are still quite young, and they have many connections and supports in Pickering. [ 36 ] Disruption occurs when children are removed from family members, their school, and a familiar community.

I find that the disruption on these children would be considerable if they were relocated from Lethbridge because of the following factors: - When they last lived in Pickering they were very young. - They have resided in Lethbridge for nearly four years during a very formative time in their lives. - T.F.H.’s parents live in Lethbridge.

They are, and always have been, very involved in the children’s lives, even when they lived in Pickering. - The children attend school together at the one school they have all known. - A move to Pickering would entail considerable disruption in the children’s routine because N.H. is now working outside the home. Conclusion [ 37 ] The factors are quite evenly balanced, except it is clear that relocation would cause significant disruption to the children. If the children remain with T.F.H. they will see N.H. much less frequently.

They will also have less contact with her family and friends in Pickering, but they have already been living away from them for nearly four years. If the children move with N.H. they will see T.F.H. much less frequently. They will be removed from the school and community they have known for nearly four years. If T.F.H. continues to live in the matrimonial home they will visit but not live there. They will have much less contact with their paternal grandparents. [ 38 ] Balancing all the factors, I find that on this interim application it is not in the best interests of the children to relocate to Pickering.

They shall continue to live in Lethbridge. Their interests would be best met by a shared parenting arrangement. As that is not possible, I need to ensure the children have maximum contact with N.H. [ 39 ] N.H. and T.F.H. will have joint custody of the children, and the children will remain in Lethbridge pending a final determination. As the children’s primary residence will be in Lethbridge, Alberta, they will attend school in Lethbridge. [ 40 ] Each year, N.H. will have reasonable and generous access to the children, in Pickering, as follows: - Six weeks in the months of July and August.

- The entire Christmas break. - The entire February break. - The entire spring break. [ 41 ] N.H. will also have reasonable telephone and Skype communication with the children, and additional reasonable access to the children anytime that she can be in Lethbridge. [ 42 ] N.H. had the children with her in Pickering in July, but has not had them there since then. She should have some access in Pickering before Christmas.

If the parties are unable to agree on that access, the matter may be brought to me for determination. [ 43 ] Costs and other claims in the application, including travel costs, may be spoken to if the parties are unable to agree. Heard on the 23 rd day of July, 2012. Dated at Lethbridge, Alberta this 24 th day of October, 2012. R.A. Jerke J.C.Q.B.A. Appearances: Kurt Schlachter Stringam Denecky For the Plaintiff Lori G. Andreachuk, Q.C. Andreachuk Law for the Defendant

_______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice R.A. Jerke _______________________________________________________ 1. The restriction on publication ban on the first page has been removed as initials have been used.