Rozinsky v. Rozinksy, 2013 ABQB 358

Court of Queen ’ s Bench of Alberta Citation: Rozinsky v. Rozinksy, 2013 ABQB 358 Date: 20130627 Docket: 4804 008600 Registry: Grande Prairie Between: Katherina Robyn Rozinsky Plaintiff - and - Trevor Daniel Rozinsky Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J. J. Gill _______________________________________________________ Introduction [ 1 ] This case involves custody and access for two children (age 9 ½ and 7 ½ years of age).

On June 27, 2012 MacLeod J. granted an Order ( “ the Macleod Order ” ) allowing the mother to relocate with the children from Grande Prairie to Lumby, British Columbia. [ 2 ] On October 30, 2012 a divorce judgment and Corollary Relief Order was granted by Ross J. ( “ the Ross Order ” ) which mirrored the MacLeod Order. [ 3 ] On April 3, 2013, the Court of Appeal heard appeals from both the MacLeod and the Ross Order. The Court of Appeal set

aside the Ross Order and directed that the MacLeod Order remain in place subject to an oral hearing to be conducted in the Court of Queen ’ s Bench prior to the commencement of the 2013/2014 school year. The Court of Appeal noted that their decision was not to be taken as a review on the merits of the MacLeod Order. [ 4 ] An oral hearing took place on June 13 and 14, 2013 to decide whether the MacLeod Order should be made final or varied.

Written submissions were provided on June 21, 2013. [ 5 ] I have concluded that the MacLeod Order should be set aside and the children returned to Grande Prairie to live with their father. Factual Background [ 6 ] Both the mother and father testified. [ 7 ] In addition, the Parties entered the following Agreed Statement of Facts: 1. The parties commenced a common law relationship on September 21, 2001; were married September 7, 2002, and separated on July 15, 2009. 2.

There are two children of the marriage, namely Gwyneth Monica Rozinsky, born November 2, 2003 ("Gwyneth") (9 years old) and Olivia Robyn Rozinsky, born October 12, 2005 ("Olivia") (7 years old) (collectively "the Children"). Both Children were born in Grande Prairie and lived there until relocating with the Mother at the end of June 2012. 3. The Mother is presently 35 years old; the Father is presently 38 years old. Children ’ s Residence Prior to Relocation to Lumby, British Columbia: 4. The former matrimonial home is located at 9016 - 66 Avenue, Grande Prairie, Alberta ("Matrimonial Home"). 5.

Upon separation, the parties entered into a nesting agreement whereby each party alternated living in the home on a weekly basis with the switch to occur Wednesdays at noon. 6. This nesting agreement was confirmed as per the Interim Without Prejudice Consent Order granted by Madam Justice J. Strekaf granted January 18, 2010. This parenting regime remained in place until the Mother relocated from the Matrimonial Home on March 3, 2010. 7. The Father continues to reside in the Matrimonial Home. 8.

Upon the Mother's relocation from the Matrimonial Home, the parties continued to alternate the Children ’ s residence on a week on/week off basis. This parenting regime remained in place until the Order of Mr. Justice A. D. MacLeod granted June 27, 2012. 9. The Mother has changed residences seven times since her relocation from the Matrimonial Home on March 3, 2010 and her

relocation to Lumby, British Columbia to reside with the children ’ s maternal grandmother, who is presently 68 years of age. 10. The Children currently reside in Lumby, British Columbia. They attend at JW Inglis Elementary School. Gwyneth is completing Grade 4; Olivia is completing Grade 2. Mother's Employment: 11. Post-separation, the Mother attended a two year course to become a registered massage therapist in Alberta. 12. The Mother is not an accredited massage therapist in British Columbia. 13. The Mother receives approximately $520.00 per month for the Child Tax Benefit.

She also receives G.S.T. quarterly payments. 14. The Mother's line 150 income was $24,136.00 in 2008, $12.454.01 in 2009, $11,210.96 in 2010 and $15,880.57 in 2011. The Mother has not completed her 2012 Income Tax Return. 15. The Mother declared bankruptcy in March 2012; at the time of the within trial, she has not been discharged from the same. Father's Employment: 16. The Father is self-employed as a vacuum truck operator in the oilfield. He did this type of work throughout the marriage and subsequent to the separation. 17.

The father ’ s line 150 income was $31,200.00 in 2008, $29,340.00 in 2009, $10,000.00 in 2010 and $24,654.96 in 2011. The Father has not completed his 2012 Income Tax Return. History of Litigation - Court Orders: 18. An Interim Without Prejudice Consent Order was granted by Madam Justice J. Strekaf dated January 18, 2010; the most relevant terms are as follows: a. The parties shall have shared custody of the Children. b. The Children will remain in the matrimonial home with the parties alternating residence in said home weekly. c.

The parties will alternate the home weekly with each switching every Wednesday at noon. d. The parties shall share household expenses on a 50/50 split basis. 19. The Mother moved out of the former matrimonial home on March 3, 2010.

20. A Consent Order was granted by Justice E.C. Wilson August 30, 2010; it required the parties to provide their disclosure pursuant to a Notice to Disclose without 30 days 21. An Interim Without Prejudice Consent Order was granted by Mr. Justice G.C. Hawco February 1, 2011; the most relevant terms are as follows: a. The Father to pay to the Mother the sum of $270.00 per month for child support commencing February 1, 2011. b. The parties were to exchange financial disclosure on or before June 30, 2011. 22. An Order was granted October 17, 2011 by Madam Justice K.M.

Eidsvik directing the Father to provide his complete disclosure by November 14, 2011 23. An Order was granted November 14, 2011 by Mr. Justice R.G. Stevens directing the Father to provide the balance of his disclosure on or before December 31, 2011. 24. The shared parenting regime continued and on April 4, 2012 Mr. Justice R.J. Hall granted an Order directing that the exchange of the Children would occur at their school or the Mother's place of employment if school was not in session. 25. An Order was granted by Mr. Justice D.

Lee on April 18, 2012 which severed the Divorce Judgment from corollary relief proceedings. 26. This matter was heard in Special Chambers June 27, 2012. Mr. Justice A.D. MacLeod granted an Order as follows: ("MacLeod Order") a. The divorce proceedings may proceed by desk divorce. b. The parties shall have joint custody of the Children. c. The primary residence of the Children shall be with the Mother. d. The Mother shall be entitled to relocate to Lumby, British Columbia with the children. e. The Father shall have access with the Children as follows: i. Christmas break each year.

For 2012, the Christmas holidays runs from December 21, 2012 to January 7, 2013. ii. Spring Break in each year. For 2013, Spring Break runs from March 15, 2013 to April 2, 2013. iii. July and August of each year. The parties shall meet in Jasper to exchange the Children on the day following the end of school and the Father shall meet the Mother in Jasper 3 days prior to the commencement of school.

iv. The parties agree to review the upcoming school calendar on an annual basis to ensure that the Father has the access as noted in paragraph (i), (ii) and (iii) in each year. v. And such other and further reasonable access as can be arranged and agreed to between the parties. f. The Father shall have telephone and Skype access with the Children at such times as agreed between the parties. g.

The Father shall pay to the Mother child support in the sum of $483.00 per month payable on the 1 st day of each month, commencing July 1, 2012, and continuing on the 1 st day of each and every month thereafter until such time as the Children are no longer children pursuant to the Divorce Act . h. The Father shall be entitled to deduct $300.00 per month from the child support to cover his costs of access from the child support paid to the Mother. i.

Commencing July 2013, the child support payable of the Order are suspended for the months of July and August in each year when the Children are in the Father's care. j. The Father shall pay his proportionate 68.2% share of the

section 7 expenses for the Children. k. The Father shall pay to the Mother the sum of $5,331.00 for child support amounts accumulated during the period of August 1, 2009 to June 30, 2012, in addition to the ongoing child support obligation, the retroactive child support is payable as follows: i. $150.00 per month to be paid on the 1 st day of each month commencing September 1, 2012, until paid in full. l.

The Father shall pay to the Mother the sum of $8,000.00 for spousal support amounts accumulated during the period from March 1, 2010 to December 31, 2011, the retroactive spousal support is payable as follows: i. $150.00 per month to be paid on the 1 st day of each month commencing September 1, 2012, until paid in full. m. The parties to exchange financial information on an annual basis. n. A Maintenance Enforcement clause. o. The Father shall pay costs to the Mother in the amount of $1,000.00. 27. The Father gave instructions to his previous Counsel, Natalia Reiman to appeal this Order.

A Notice of Appeal was not filed within the required time limit. 28. A Divorce Judgment and Corollary Relief Order was granted by Madam Justice J.M. Ross October 30, 2012 ("Ross Divorce

Judgment"). This Judgment mirrored the terms of the Order of Mr. Justice MacLeod. The Father states he did not provide instructions for Ms. Reiman to sign the Ross Divorce Judgment on his behalf. 29. An Order was granted by Mr. Justice R. P. Belzil December 17, 2012; the most relevant terms are as follows: a. The Mother was to drop the Children off at the paternal grandparents' home in Vernon, British Columbia on December 21, 2012 at 4:00 pm. b. The Father was to return the Children to school on January 7, 2013, at the start of the school day. c. A police enforcement clause was included. d.

No costs were payable by one party to the other. 30. Mr. Justice F. Slatter granted an Order in the Court of Appeal December 21, 2012.The most relevant terms are as follows: a. The time to appeal the MacLeod Order to be extended upon the following conditions being satisfied: i. The Father to pay $5,000.00 to the Mother in interim costs. ii. The Father to apply for and diligently prosecute an application before the Court of Queen's Bench of Alberta for leave to appeal the Ross Divorce Judgment, said application to be made before January 15, 2013. iii.

In the event the Father proposes to bring an application in the Court of Appeal to introduce fresh evidence in the appeal of the Ross Divorce Judgment, that application must be brought in a timely manner (unless consented to by Mother's Counsel). iv. The Father must remain up-to-date in paying all sums due and owing under any previous Court Order. v. The Father must file and serve his Notice of Appeal of the MacLeod Order no later than January 15, 2013 and must thereafter diligently prosecute the appeals and comply with the deadlines as prescribed by the Rules. vi. The two appeals to be consolidated.

The Father fulfilled all obligations under this Order; all payments owing by the Father to the Mother were made. 31. Pursuant to Formal Judgment granted by Madam Justice C. D. Hunt, Mr. Justice R. L. Berger and Madam Justice B. L. Veldhuis in the Court of Appeal the Ross Divorce Judgment was set aside. The MacLeod Order was to remain in place subject to an oral hearing to be conducted in the Court of Queen's Bench prior to the commencement of the 2013/2014 school year. The direction with respect to the MacLeod Order not to be taken as Appellate review as to the merits of the MacLeod Order. 32.

An Order was granted by Mr. Justice B. Millar January 7, 2013; the most relevant terms are as follows:

a. The Father had leave to appeal the Consent Divorce Judgment and Corollary Relief Order granted by Madam Justice Ross October 30, 2012 (as per Mr. Justice Slatter's direction). b. The Father's application with respect to counselling for the Children was granted. Specifically, the Father shall be provided with the name, address, email and telephone number of the counsellor the Children were seeing. The Father was at liberty to contact the counsellor and the counsellor shall disclose information regarding counselling to the Father. 33. An Order was granted by Mr. Justice T. D.

Clackson March 14, 2013; the most relevant terms are as follows: a. The Father was to pick the Children up from school on March 15, 2012 at 2:35 pm at the end of the school day. The Father shall drop the Children off at school on April 2, 2013 at the start of the school day. Neither the Mother nor any member of her family shall be present at the pick up or drop off. b. The Father shall have telephone access to the Children on Wednesday evening between 6:00 pm and 8:00 pm Alberta time and Sunday evening between 6:00 pm and 8:00 pm Alberta time. The Father shall place the initial phone call.

The Mother shall answer the phone, the phone shall be transferred to the Children, and the call as between the Father and the Children shall be conducted in private (the Mother shall not be present during the phone call). c. When the Children are in the Father's care, the Mother shall have telephone access to the Children on Wednesday evening between 6:00 pm and 8:00 pm Alberta time and Sunday evening between 6:00 pm and 8:00 pm Alberta time. The Mother shall place the initial phone call.

The Father shall answer the phone, the phone shall be transferred to the Children, and the call as between the Mother and the Children shall be conducted in private (the Father shall not be present during the phone call). d. Communication between the parties shall be with respect to the Children only and shall be by electronic mail. Each party must keep copies of the electronic mail with said copies to be provided to Counsel and/or the Court if requested or required. e. A police enforcement clause was included. 34. An Order was granted by Justice M. D.

Gates April 8, 2013; the most relevant terms are as follows: a. Trial was set for June 12, 13 and 14, 2013. b. Questioning for Discovery of both parties was to be conducted by May 15, 2013. c. Answers to undertakings arising from Questioning for Discovery to be provided on or before May 31, 2013. d. Counsel for the Father reserved the right to speak as to who shall pay the filing fee relative to the oral hearing. e. Conduct money for Questioning was waived. f. Form 37 was dispensed with.

g. Form 39 was to be filed by April 30, 2013. Evidence The Mother [ 8 ] The mother now uses the name “ Salter. ” Ms. Salter is presently 35 years old and lives with her mother and the children on an acreage of 20 ½ acres outside Lumby, British Columbia. Lumby is a town of about 1,200 people. Her mother ’ s home is a 5000 square foot house “ half way up a mountain ” . There are no neighbours. It is a hobby farm with horses, dogs, cats and chickens. Ms. Salter ’ s mother is 68 years old. She is healthy other than having a prolapsed bladder.

She can still drive and ride a horse but does not want to have surgery to have it repaired. Prior to Ms. Salter arriving in the summer of July, 2012, her mother used to have a woman come once a week to assist her with household chores. [ 9 ] Ms. Salter has no siblings. She has a cousin in Comox and an aunt in Vernon with whom she is not on speaking terms. When Ms. Salter moved to British Columbia in the summer of 2012, she did not have a job lined up as she planned to find work after helping her mother catch up on chores. Ms.

Salter could not afford to get accredited as a licensed Massage Therapist in British Columbia. There were no jobs for her in Lumby. She eventually got a job at a spa in Vernon and takes home approximately $500 to $600 every two weeks. [ 10 ] Ms. Salter acknowledged that she could make $60 to $90 an hour in Grande Prairie as she is an accredited Massage Therapist in Alberta . She closed her business in Grande Prairie around June 8, 2012 and did not look for any other jobs in Grande Prairie. [ 11 ] The children attend a school in Lumby and apparently are doing well.

The children are picked up from school by their grandmother on the days that Ms. Salter works. The children have integrated well and have lots of new friends. Ms. Salter has enrolled the children in Girl Guides and Brownies but could not afford skating lessons nor horseback riding. She started them in swimming lessons but stopped taking them when the children developed warts. [ 12 ] Ms. Salter believes that the children are more confident and their self esteem has improved. They are more gregarious and outspoken than when they lived in Grande Prairie.

She described the advantages of British Columbia, including the better weather, and that the children can get outside more, they can ride their bikes, and they have dogs, a horse and a chickens to enjoy. She believed the children felt suppressed and were not allowed to do things when they were with their father. [ 13 ] Ms. Salter was shown phone records showing numerous, unanswered calls from the father, grandparents, and other family members during September, October, and November, 2012. Ms. Salter said she did not respond to those phone calls as “ neither child wanted to speak to ” anybody. [ 14 ] Ms.

Salter admitted that there was an eight to nine week period without telephone contact with the father from September 9 to November 7, 2012 and does not dispute that the father left messages during this period. Ms. Salter claims that she did not ignore calls or messages from the father. She claims the father had really upset the children when he told them, “ You don ’ t love me and you don ’ t care about me. ” She claims that “ the girls were reeling and refused to speak to their father. ” The children would not pick up the phone when the father called for approximately eight or nine weeks.

They did not want to speak to the father or the father ’ s girlfriend or the paternal grandparents. [ 15 ] Ms. Salter never made any attempts to discuss this situation with the father or anybody else. Her attitude was that if the children aren ’ t comfortable, they don ’ t have to talk to their father and she was not going to force them. [ 16 ] Ms. Salter also acknowledged another period from February 2 to April 19, 2013 when the father was not able to make telephone contact. She said the children “ didn ’ t want to respond to e-mails and didn ’ t seem to care. ” Ms.

Salter testified that “ it ’ s not [her] problem ” and she “ couldn ’ t force their feelings. ”

[ 17 ] Ms. Salter acknowledged writing an e-mail dated November 16, 2012 in which she told the children to “ feel sorry for your dad because he doesn ’ t know what sort of person he has become. ” [ 18 ] Ms. Salter was also shown a series of e-mails from the paternal grandparents requesting that the children be allowed to stay overnight. The grandparents live in Vernon, which is approximately a 30 minute drive from Lumby. The mother testified that she was very offended because the grandparents allegedly told the children that they were going to be staying overnight without asking for Ms.

Salter ’ s permission. [ 19 ] Ms. Salter testified that she neither encourages nor discourages the children from having contact with the grandparents. She tells them, “ It ’ s up to you if you want to stay overnight ” . Ms. Salter believes a visit with the grandparents once a month is sufficient until the children are more comfortable. [ 20 ] Ms Salter acknowledged that she did not tell the father that she had put the children into counselling in Lumby nor did she provide details of the counselling when he asked.

Her reason was that it “ would not be fair to the children. ” She also acknowledged that the father needed to get a Court Order before she would provide this information. The Father [ 21 ] Mr Rozinsky testified that Ms. Salter never mentioned the possibility of her moving to British Columbia prior to commencing the court application. He was caught completely off-guard.

She also never mentioned anything about her mother having health problems. [ 22 ] He was also surprised that she left her employment in Grande Prairie as she is an accredited Massage Therapist in Alberta and there is plenty of work in Grande Prairie. [ 23 ] The father testified that the children ’ s behaviour towards him changed after they moved to Lumby. They used to be chatty and very energetic on the telephone. Now when he calls they only provide one-word answers and he has to ask a lot of questions.

They seem afraid to talk and there is a lot of “ dead air. ” [ 24 ] He described a nine week period starting on September 14, 2012 when he could not get through to his children by phone or email. He had no contact with them at all. Despite trying, he was not able to contact the children on their birthdays (Olivia turned seven in October, 2012 and Gwenyth turned nine in November, 2012). This was the first time ever that he had not spoken to them on their birthdays.

His sister and parents also tried unsuccessfully to contact the children during the same period. [ 25 ] He recalls that on one occasion when he phoned to talk to the children, the grandmother answered and told him that the children did not want to talk to him. [ 26 ] There was also a second period after Christmas when he could not contact the children. He made repeated calls but only got through once in the middle of February, 2013.

Essentially it was a 2 ½ month period from January 7 to March 15 (Spring Break) where he had only one call with the children. [ 27 ] It was because of this inability to contact the children that he felt it necessary to bring the court applications before Christmas in 2012 and in Spring 2013 in order to ensure his access. Ms. Salter denied his request to pick the children up from school at Spring Break. He had been interested in attending at the school in Lumby to meet the teachers and see the children ’ s classrooms, etc. [ 28 ] The father testified that Ms.

Salter did not inform him that she had put the children into counselling in Lumby. He found out

about the counselling indirectly after contacting the school in Lumby. Similarly, he only learned about the children’s extra curriculaactivities (cross-country running at school, etc.) from the school. He received no information from Ms. Salter in regards to the children’sactivities. He believes that Ms.

Salter’s conduct is causing him and his family to become alienated from the children’s lives. [29] The father also has concerns about the children’s safety as they live on an isolated acreage which is about half of a mile fromthe road and approximately 12 minutes by car from Lumby. [30] He is also concerned that Ms. Salter does not help the children with their school work if necessary. That was his experience inGrande Prairie.

He notes also that the Lumby school report states that one of the children should join some social activities. [31] He believes that it would be in the best interest of the children to have them relocate back to Grande Prairie and resume theprevious shared parenting arrangement (week- on/week- off basis) as it worked very well for the children. [32] If the children were returned to Grande Prairie to live with him and Ms. Salter stayed in Lumby, he would propose she obtainreasonable and generous access.

For example, she could have all of the summer break (except for the last two weeks when his familynormally has a large reunion in the Okanagan). She could have every Spring break and very generous access every Christmas. Shewould be free to have the children any time she visited Grande Prairie. She could also have generous telephone access. Issue [33] Should the MacLeod Order permitting the mother to relocate with the children to Lumby, British Columbia be made final orvaried? Law [34] The leading case in relation to this type of case is Gordon v. Goertz, (SCC), [1996] 2 SCR 27.

At paragraph49, McLachlin J. (as she then was), provided a

summary of the issues that require consideration when the Court is faced with a mobilityapplication: 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 needsof 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. [35] The starting point for any mobility application is the two part analysis established in Gordon v.

Goertz under which the Courtmust first find there has been a material change in the circumstances affecting the child.

This is described at paragraph 13: 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 changein the 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. [36] Once that threshold is reached, the Court must then determine what custody arrangements would be in the child’s bestinterest. At paragraph 17 of Gordon v.

Goertz, the approach to be used is described: 17 The threshold condition of a material change in circumstance satisfied, the court should consider the matter afresh withoutdefaulting to the existing arrangement: Francis v. Francis (1972), (SK CA), 8 R.F.L. 209 (Sask. C.A.), at p. 217.

Theearlier conclusion that the custodial parent was the best person to have custody is no longer determinative, since the existence of materialchange presupposes that the terms of the earlier order might have been different had the change been known at the time. (Willick v.Willick, supra, at p. 688, per Sopinka J.) The judge on the variation application must consider the findings of fact made by the first judgeas well as the evidence of changed circumstances (Wesson v. Wesson, supra, at p. 194) to decide what custody arrangement now accordswith the best interests of the child.

The threshold of material change met, it is error for the judge on a variation application simply todefer to the views of the judge who made the earlier order. The judge on the variation application must consider the matter anew, in thecircumstances that presently exist. [37] There are a number of mobility decisions from the Alberta Court of Appeal. One that is relevant to this case is that of J (OA)v. K (SM), 2012 ABCA 49.

In that case the Court of Appeal determined that a child’s strong ties to his or her home community coupledwith a close relationship with the parent staying behind is enough to deny the moving parent’s relocation request. Analysis Material Change in Circumstances

[ 38 ] The mother ’ s decision to move back to Lumby to live with her mother in June 2012, clearly qualifies as a material change in circumstances. The move affects the ability of the parents to meet the needs of the children. It materially affects the children and was not foreseen and could not have been reasonably contemplated when Madam Justice Strekaf issued the Interim Without Prejudice Consent Order dated January 18, 2010, granting the parents shared custody of the children with alternating weekly residence in each parent ’ s home.

Application of the Test Best Interests of the Child [ 39 ] Since the material change threshold is met, the Court must “ embark on a fresh inquiry into what is in the best interests of the child, having regard to all of the relevant circumstances relating to the child ’ s needs and the ability of the respective parents to satisfy them. ” Gordon v. Goertz , supra, at paragraph 49 . [ 40 ] The ultimate question is what is in the best interests of the children in all of the circumstances, old as well as new.

The Existing Access and Custody Arrangements [ 41 ] While the parties lived together the mother had been the primary caregiver. On separation, the parties entered into a nesting agreement whereby each party alternated living in the home on a weekly basis with the switch to occur on Wednesdays at noon. This nesting agreement was confirmed in the Interim Without Prejudice Consent Order granted by Madam Justice Strekaf on January 18, 2010.

This parenting regime remained in place until the mother relocated from the matrimonial home on March 3, 2010. [ 42 ] Upon the mother ’ s relocation from the matrimonial home, the parties continued to alternate the children ’ s residence on a week-on/week-off basis. This shared parenting arrangement remained in place until the MacLeod Order (June 27, 2012). [ 43 ] This is not a situation where a parent who is a primary caregiver wishes to relocate.

Rather it is a case where there was a shared parenting order in place at the time of the relocation application. [ 44 ] All of the evidence suggests that the shared parenting arrangement worked very well for the children. Ms. Lisa Schau, a child mental health outreach worker with Alberta Health Services, testified. She had been contacted by the school in early 2012 and met with the children on several occasions between January and May, 2012 (three times with Gwenyth and four times with Gwenyth and Olivia together).

She concluded that the children were very well adjusted and were thriving in the shared parenting arrangement. She found them to be bright, chatty and happy. They did not need counselling. [ 45 ] The evidence is that, while in Grande Prairie, the children had a very close relationship with both parents, maximizing contact with each parent. The children also had frequent contact and a very close relationship with other family members who live in Grand Prairie including a paternal aunt, uncle, and three cousins.

The paternal grandparents and the father ’ s girlfriend, Jenn, also had frequent personal and telephone contact. [ 46 ] Since the children moved to Lumby, the evidence leads me to conclude that both the frequency and quality of contact between the children and the father (and these other family members and Jenn) has diminished significantly. As a consequence, the children ’ s relationship with the father and these other persons has deteriorated.

[ 47 ] While one would have expected that with distance and the lack of daily contact there would be some change in the nature of the relationship, the evidence leads me to conclude that the extent of the deterioration is very serious and clearly not in the best interests of the children.

What is most disturbing is that this deterioration seems to have been caused largely by the actions of the mother in preventing or obstructing access. [ 48 ] The evidence I accept is that there were long periods of time when the father (and other family members) had no telephone contact with the children despite numerous attempts. The evidence showed that there was a nine week period in the fall of 2012 when the father was unable to speak to the children despite numerous attempts to do so. This includes not being able to speak to them on their birthdays in October and November.

There was another period of two and a half months in January, February, and March of 2013 when the father was only able to contact the children by telephone on a single occasion. [ 49 ] The paternal grandparents (who had been very close to the children while they lived in Grande Prairie) and who lived only approximately 30 minutes from the mother ’ s residence in Lumby) had similar problems with telephone or other access. [ 50 ] When asked about this lack of contact, the mother showed a total lack of understanding as to the importance of this contact.

She claims the girls (who were eight and six years of age at the time) were refusing to speak to their father supposedly because the father had told them “ that they didn ’ t love him and didn ’ t want to talk to him. ” [ 51 ] The mother ’ s evidence was not satisfactory on many issues. She explained away the long periods of no telephone contact on the fact that these young children were refusing to speak and were not comfortable talking to their father. She does not dispute that numerous messages were left and not returned.

The fact that after Christmas 2012, the children had no contact with their dad for two months was “ not [her] problem ” as she “ can ’ t force their feelings. ” [ 52 ] Ms. Salter put the children into counselling but refused to provide the name of the counsellor to the father. Her explanation was that it was “ not fair to the children. ” The father had to obtain a court order in January 2013 before she provided that information. The children also took

part in a number of other activities including a cross-country race and a Christmas play, but the mother did not provide that information to the father. [ 53 ] I find the mother ’ s evidence not to be credible. I find that she deliberately prevented the father from having access to the children by telephone and that her conduct showed a lack of insight and indifference towards the children ’ s relationship with their father and other family members.

Her conduct was at best negligent and bordered on deliberate alienation. [ 54 ] The actions of the mother has caused ongoing conflict between the parties which required further court intervention. The father had to go to Court to protect his access. This resulted in the following orders in a short period of time: an Order dated December 17, 2012 of Belzil J., addressing Christmas access by the father; an Order dated January 7, 2013 of Miller J., dealing with the father ’ s request for information on the name and address of the counsellor; an Order of Mr.

Justice Clackson J. addressing Spring Break access for the father and telephone access. The Desirability of Maximizing Contact Between the Children and Both Parents [ 55 ] The children ’ s needs with regards to access to both parents clearly were being met when they lived in Grande Prairie. [ 56 ] As a result of the mother ’ s behaviour while she had the children in Lumby, I conclude that the interests of the children in having contact and access to their father will not and cannot be met if the children are in Lumby.

On the other hand the father demonstrated an understanding of the importance of both parents having significant contact with the children and a willingness to provide generous and reasonable access and contact. Disruption

[ 57 ] The move to Lumby has caused a major disruption for the children in terms of the relationships with their family and friends, and their involvement in school and extra curricular activities in Grande Prairie. Prior to moving, the children attended a school in Grande Prairie where they both were doing well. They lived in a neighbourhood where they had numerous friends. Their paternal aunt and uncle and three cousins with whom they had a lot of contact lived only two blocks away. In addition, their paternal grandparents visited on a regular basis and also had regular telephone contact with them.

They were enrolled in numerous activities in Grande Prairie: dance, swimming, and gymnastics. [ 58 ] The children also had a positive relationship their father ’ s girlfriend (Jenn). She lives approximately five minutes away from the father ’ s home in Grande Prairie. She also has children and the two families have spent a significant amount of time together, including sleep overs and holiday periods. [ 59 ] The father is self-employed and has a flexible work

schedule and could continue to take the children to school in the morning and pick them up. He had been a very active parent and organized their morning routine to get them up and ready for school every day. Weekend activities include going to the park and frequently going to his sister ’ s house (a block or two away) for a barbeque. His sister ’ s three children have a very close relationship with his girls. They would be together at least once a week.

This support and contact with other family members is significant. [ 60 ] In the past, the father has organized birthday parties taking the girls to the bowling alley, a gymnastics centre, and the swimming pool. The father has organized and paid for the children to be in a number of activities including dance, gymnastics, swimming, and ballet. [ 61 ] The neighbourhood in which they lived in Grande Prairie has parks and bike paths. The kids play outside constantly and have made friends with other children on the block.

A number of friends from school live in the neighbourhood. [ 62 ] Their situation in Lumby is very different. Ms. Salter lives with her mother on an isolated acreage with no neighbouring children or neighbours to play with. The school in Lumby appears to be adequate; however, the children are in enrolled in very few activities. They have virtually no contact with any family members including the paternal grandparents as well as, the paternal aunt, uncle, and cousins. [ 63 ] The disruption to the children ’ s lives is a significant factor weighing against a move to Lumby.

Reasons for moving to Lumby [ 64 ] I find that Ms. Salter overstated the necessity for her to move back to Lumby. In her application to obtain the Macleod Order she suggested that her mother was in ill health and needed significant physical assistance. At best this was an overstatement and was misleading. Her mother has a prolapsed bladder but does not want to have surgery. She has had a woman help her once a week with some physical activities but can still ride a horse and drive a car and she appears to be active. [ 65 ] Another reason stated for moving to Lumby was that it would better financially. In fact, Ms.

Salter ’ s job opportunities are superior in Grande Prairie. She is a qualified as a Massage Therapist in Alberta and it appears she could more easily obtain employment in her profession in Grande Prairie. [ 66 ] This evidence as to her reasons for moving to Lumby is not determinative of the issues but is relevant in assessing Ms. Salter ’ s credibility and reliability. Conclusion

[ 67 ] Applying the best interests test I conclude that the Interim Order permitting the mother to relocate with the children to Lumby, British Columbia, should be set aside. [ 68 ] Moving the children back to Grande Prairie will maximise the contact with both parents and minimise the disruption to the children. The children have strong ties with their father, the city of Grande Prairie, and other family and friends who live there.

While living in Lumby, the mother has demonstrated an inability and unwillingness to ensure access and to preserve the children ’ s relationship with the father and other family members. The move to Lumby has also caused a significant disruption in the children ’ s relationships and activities. [ 69 ] The father testified that he believes that it would be in the best interests of the children that the shared parenting arrangement that had previously been in place be restored. I agree. However, the mother has indicated that she will not be moving back to Grande Prairie.

Therefore, the choices before the Court are for the children either to live primarily in Lumby with the mother or to live primarily in Grande Prairie with the father. [ 70 ] I conclude that the children should be returned to Grande Prairie to live with the father.

Summary [ 71 ] I order the following: 1. The parties shall have joint custody of the children of the marriage with primary residence to be with the father in Grande Prairie. 2. The mother shall have reasonable and generous access to the children including the following: a. Two weeks at Christmas during the Christmas school vacation starting 2013, and in the alternating year a one week period during the Christmas school vacation; b. Six weeks in the summer; c. Every spring break; d. Regular telephone access; e.

The father will keep the Mother advised as to activities the Children are involved in, appointments, school performances, etc., by way of a weekly e-mail. Other Issues [ 72 ] In the event that the children live with him in Grande Prairie, the father is not seeking child support. The father suggests that the mother can use the money saved by way of non-payment of child support in part to fund her access costs. Based on the evidence, this is a reasonable course of action and therefore no order is made in relation to child support.

[ 73 ] Ms. Salter had made a claim for continued spousal support. I find that there is no further entitlement to spousal support. The marriage was of relatively short duration (7-8 years). Since separating in 2009, Ms .Salter has been involved in several common law relationships. Ms. Salter, who is 34 years old, has also taken a two (2) year course to retrain and become a registered Massage Therapist. Also relevant to the overall financial situation is the fact that Ms. Salter is not being required to pay any child support. [ 74 ] In written argument the Plaintiff referred to a loan made to the parties by Ms.

Salter ’ s mother . There was insufficient evidence to decide this matrimonial property issue .Therefore I order that the trial of this issue be adjourned. If the parties cannot resolve the issue they can apply for further direction. Costs [ 75 ] If the parties cannot agree on costs they may speak to them within 90 days. Heard on the 13 th and 14 th day of June, 2013. Written submissions on June 21, 2013. Dated at the City of Grande Prairie, Alberta this 26 th day of June, 2013. J. J. Gill J.C.Q.B.A. Appearances: Jessica Chapman Birdsell Grant LLP for the Plaintiff Laura H.

Bruyer Gordon Zwaenpoel for the Defendant