DRB v TLB, 2013 ABQB 430

Court of Queen ’ s Bench of Alberta Citation: DRB v TLB, 2013 ABQB 430 Date: 20130826 Docket: 4801 122777 Registry: Calgary Between: DRB Plaintiff - and - TLB Defendant Corrected judgment: A corrigendum was issued on August 26, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice K. D. Yamauchi _______________________________________________________ I. Introduction

[ 1 ] This application comes before this Court as a special chambers application, with viva voce evidence. The issue before this Court is whether this Court should grant permission to the Applicant DRB (the “ Father ” ) to move the children of the marriage from Calgary, Alberta if and when he receives an offer of employment in a different city.

He argues that if he were to receive such an offer, it will be on a very short notice, such that he will not be able to seek the court ’ s permission. [ 2 ] At the beginning of this matter, this Court expressed a concern that it cannot render a decision based on hypothetical facts or on circumstances that may or may not crystallize. However, the parties agreed to present the viva voce evidence. If the Father secures employment outside Calgary, they will return to this Court to provide it with updated information and their arguments.

Only then will this Court be in a position to provide the parties with a meaningful decision. To that end, this Court has seized itself with the very narrow mobility issue. If other issues arise that involve these parties, they will have those matters dealt with in regular morning family chambers or through other special chambers applications. [ 3 ] This Court has now received the further information it was seeking.

The Father has received a job offer from Roger Communications in Toronto, Ontario, commencing August 12, 2013. [ 4 ] Before moving on to consider the issue that is before it, this Court will present a background to this matter. II. Facts [ 5 ] The parties were married on 19 September 1998, and separated in December 2004.

They were divorced in 2006. [ 6 ] The parties have 3 children: RAB, daughter, born 25 November 1998 (14 years); AMB, son, born 20 January 2001 (12 years); and HMMB, daughter, born 11 May 2004 (9 years) [ 7 ] Smith J decided parenting issues between the parties after a week-long trial that took place from 30 May 2010 to 04 June 2010 (the “ Parenting Judgment ” ). [ 8 ] The Parenting Judgment gave the parties joint custody of the children. The Parenting Judgment gave the Father primary care of the children with specified access to the Respondent TLB (the “ Mother ” ).

Smith J said: The evidence proves that [the Father] is the responsible, stable parent who has a history of both holding a responsible job, enjoying his time with the children, and fulfilling his responsibilities to them. He is fortunate to have flexibility at work which permits him to leave the office if the children need him. [The Mother] is a fun-loving, but inconsistent parent who so far has not demonstrated an ability to see the children's best interests apart from her own. She is not able to deal consistently with early mornings.

She appears to have chosen not to take care of the basics of adult living, but would like to do so. She blames [the Father ’ s] leaving the marriage for much of her instability and misfortune and seems to lack appreciation for his role in keeping the children stable: Parenting Judgment p 13, ll 31 to 39. [ 9 ] At the time of the trial, the Father was the news director at a television network in Calgary.

The Mother was unemployed and receiving social assistance. [ 10 ] In July 2012, after several months of discussion, the Father accepted a severance package from his employer, at which time his employment was terminated. Since then, the Father has been actively seeking new employment. He was seeking a position similar to

that which he held with his employer as well as looking for other positions in Calgary, Toronto, Vancouver and in the United States. [ 11 ] Since September of 2012, the oldest child, RAB, has lived with the Mother. This is through RAB's own choice. The Father does not approve, but chose not to interfere given RAB's age. [ 12 ] The Father made the within application 5 February 2013, in morning chambers. The Mother attended the morning chambers application without counsel, but with RAB, to oppose the application. Phillips J directed the matter to an expedited viva voce hearing.

Why did Phillips J direct an expedited viva voce hearing? Because of the nature of the employment the Father seeks, he stated that, should he receive an offer of employment outside of Calgary (and he chooses to accept it), he will have to take up the new position within 2 - 3 weeks of his acceptance of the offer. This would not allow time for him to then apply to the court to move with the children to the new location. This Court has done its best to accommodate the parties in this regard, while at the same time, allowing for a full hearing of this matter. III.

Testimony [ 13 ] The Father and the Mother presented this Court with their viva voce evidence. It should be noted that through their testimony, it appears that the parties covered many of the matters that they likely presented to Smith J. As well, many of the issues that face the parties and their children are not issues that are unique to them.

In fact, most parents face the same or similar issues with children who are (1) being raised by parents who are no longer living together, and (2) adolescent. [ 14 ] Thus, it would serve no useful purpose in presenting the minute detail that was covered in their viva voce testimony. Rather, it is more useful to present their evidence only as it relates to the issues that are before this Court. The Father [ 15 ] Soon after he lost his job with the television network, the Father discussed with the Mother the possibility of his having to move.

The Mother responded by saying , “ if you move, we all move. ” The Father felt that this would be ideal, as they could maintain their custody and access arrangement, such as it was. The Mother ’ s comment informed his search, both in Calgary and elsewhere. [ 16 ] The Father did not think he would have much difficulty finding a job. He was wrong, because of the limited number of jobs in the Canadian market for positions he formerly held. There are only six such jobs within Canada and they do not frequently become available. The jobs that have become available are filled internally.

He has even tried to secure the internal jobs left by the person the network hired, but he has not been successful. [ 17 ] He has now started looking for jobs outside his field in communications, media relations or teaching jobs. He says that the teaching jobs are not very lucrative, but he enjoys them. He has some “ irons in the fire ” but he has not heard from the employer, as yet. One of those positions would be in Calgary.

He is also trying to convince potential employers to create jobs for him, as he possesses unique skills that would contribute to the organization. [ 18 ] A list of the positions for which he has applied was made an exhibit in these proceedings. He explained each, but there is no useful purpose in outlining them. [ 19 ] He currently teaches one course at the Southern Alberta Institute of Technology and he writes a column for a local newspaper.

The pay is minimal, but it keeps him occupied. [ 20 ] With respect to the teaching positions, he advises that most of the post-secondary institutions require their instructors to have a Masters degree or higher. He has neither. However, some of them can hire him as a part-time lecturer. He advised that if he cobbled together a number of these part-time positions, he could make teaching a full-time position. He is considering this, but the post- secondary institutions do not make these decisions quickly.

[ 21 ] The Father also has his name with a consulting firm that his former employer uses in the United States. The consulting firm supports him and is assisting him. He stated that green cards hard to get, so he is not pursuing this aggressively. [ 22 ] The Father said that he is not considering any upgrade in his education. His reason is that he cannot afford not to work. He also has no plans for early retirement, as this is not an option. [ 23 ] The Father started by proudly describing his children.

Except for HMMB, there is nothing remarkable about the children For this Court to say there is nothing remarkable about the children might sound like they are not special. That is not what is intended. Rather, the two older children have the same interests, and pose the same challenges, as do other children in similar situations. With respect to HMMB, she was developmentally challenged in her speech. Through her very hard work, she is making great progress in meeting this challenge.

The Father ’ s pride in her accomplishment was palpable. [ 24 ] Prior to the trial before Smith J, the Father described the children ’ s

schedule as “ chaotic. ” The Parenting Judgment was intended to add some predictability and stability to the children ’ s schedules. He described the Mother ’ s reaction to the Parenting Judgment as being very negative. She felt it was unfair and told the children “ bad news, we lost. ” As a result, the children initially rebelled against the “ new regime. ” At times, the Father described it as being “ awful. ” He has, through negotiation, inducements and threats required the children (and the Mother) to abide by the

schedule that the Parenting Judgment provides. [ 25 ] Now, there are periods when it is fine. The children expect him. It is stable. However, at times, the stability is eroded through the parties changing the schedule. The parties have tried to create “ one-on-one time ” where each parent has a chance to spend time alone with one of the children. Even this has caused some chaos because the changes are ad lib . [ 26 ] The current

schedule to which the parties have agreed is a more flexible arrangement. The Mother has more access than she had in 2010. The children continue to rebel occasionally and the Father has asked the Mother to support him. She undermines his authority with the children. The Father testified that he cannot exert this authority without being placed in the position of the “ bad guy. ” [ 27 ] Despite the particularity with which Smith J outlined the parenting

schedule in the Parenting Judgment, the parties have not strictly abided by it. What this Court finds interesting is that the Father and the Mother appear to be able to communicate with each other concerning access. As well, there seems to be predictability in the scheduling of access, but if there is any difficulty, the parties appear to be able to resolve the difficulties. There have been issues concerning one parent scheduling time that encroaches on the other ’ s access. The Father testified that he and the Mother are working towards resolving this.

The only exception relates to summer access, when the Mother feels that if the children are with the Father for more than one week, that is “ too long. ” [ 28 ] The Mother ’ s car insurance lapsed. Thus, the Father does most of the driving that involves the children, including pick-ups and drop-offs, schooling and extra-curricular activities. [ 29 ] In September of 2012, the eldest child went to live with the Mother. She started to articulate this to the Father near the end of the summer of 2012.

The Father wanted her transition to the Mother ’ s place to be gradual, but RAB was adamant, so the Father capitulated. Why? He wanted to protect his relationship with RAB. He told RAB that if she ever wanted to return to live with his, he would welcome her. She continues to stay with the Father every second weekend and she comes to his place when she needs help with her math homework. [ 30 ] It was interesting how the Father described what he saw as RAB ’ s concern about her moving in with the Mother.

The Father said that he thought RAB was “ stressed out ” about how he might react to her news and was prepared for a confrontation. He told her that he was not happy and a bit surprised, but said that what was more important was that their relationship was going to last the rest of their lives. As well, for the morning Chambers application on this matter, the Mother had RAB swear an affidavit. Again, RAB was expecting the Father to have a negative reaction towards her. He told her that she must understand that he loves her. He thought that this was a big relief to RAB.

In the end, the Father is very happy with their relationship. [ 31 ] The Father is familiar with, and has met some of the children ’ s friends. He does not know all of them.

[ 32 ] The Father attended a parent-teacher conference in January 3013. The Mother did not attend. Two teachers advised the Father that they were concerned that RAB was behind in her schooling. She was not getting her homework done and was receiving mediocre marks and zeros. Before this, RAB was an honour student. Her marks have “ gone downhill ” since September 2012. [ 33 ] RAB has a keen interest in drama, to the point where she was chosen to play a key role in an upcoming school play.

As a result, the Father met with drama teacher and others and used RAB ’ s interest in drama as a “ carrot ” ; if she does not improve in her academics, she will not be able to participate in the play. [ 34 ] The next week, after the parent-teacher conference, the Mother met with RAB ’ s teachers and worked out a

schedule of how RAB will be able to catch up with her missed assignments. [ 35 ] The children ’ s school attendance has been a problem for all three of them. The Father does not attribute this to the Mother, but to the fact that the children are always sick. AMB has had a mild case of asthma for several winters. He gets colds that would last through the winter months. He is seeing an asthma specialist. He has also been assessed for attention deficit disorder by a pediatrician. He is currently going through an assessment. As well, a dentist has recommended that he be assessed by an orthodontist.

His teachers have expressed concerns with his motivation and enthusiasm in school. His behavioural issues continued to be a problem in December and January. He is an average student, but he is keen about dance. [ 36 ] The Father and the Mother have different parenting styles. The Mother feels that the children should be able to make up their own minds as to what to do and where to go. The Father feels that he must exert more authority over the children in their day-to-day decisions; especially when it is in their best interests.

For example, the Mother and the Father have discussed the issue of when the children should go to bed on the weekends. This started about 3 years ago. The Mother feels that on weekends the children should be able to stay up late. The Father feels there should be consistency in their sleep patterns during the whole week. The Father concedes that, as a teenager, RAB will make her own decisions on when to go to bed on the weekends, but he is still concerned about the younger children. [ 37 ] The Father testified that the children will often stay elsewhere with their friends on the weekends.

This does not concern the Father. However, recently, the Mother allowed AMB to have a sleep over at his friend ’ s place. The friend is a 13 year-old girl. The Father expressed some concern over this. The Mother has agreed that this will not continue. As well, some of the sleep overs happen during weekends that the children are to be staying with the Father. The Mother had given permission to the children to do this, without consulting with the Father. [ 38 ] The Father expressed concerns over the children ’ s well-being while they are with the Mother.

He has concerns about about state of the Mother ’ s townhouse. It has no curtains on front windows and he understands that the children sleep in living room on couches. It does not appear to be adequately furnished. [ 39 ] When he picks up children from the Mother ’ s place, he has a concern about whether they are adequately eating or cleaning themselves. During weekdays, they eat at his place.

When the Mother does feed them, he is concerned that they are not receiving a balanced diet. [ 40 ] The Father did not make the children aware of this application, although he has spoken to them about the possibility of their moving. He says, however, that they have been made aware of this by their Mother. The nature of his conversations with the children involved his telling them that he required an income. He also said that his goal was to have everyone in the family together. [ 41 ] In December of 2012, the Mother advised the Father that RAB will not move with him to a new location.

The Mother also advised the Father that she is not interested in moving. The Father explained to the Mother the difficulties in maintaining a “ maximum contact ” arrangement if they lived in separate cities and asked her to think about it. She advised him that she thought about it and told him “ it ’ s not her problem. ” She also felt that the Court would not “ split up the kids. ” [ 42 ] When the Father started talking to the older children about the possibility of moving, RAB stated that she wants to stay in Calgary. As well, AMB said he does not want to move.

The youngest child has not expressed her views one way or the other.

[ 43 ] The Father believes that the Mother is capable of working as a real estate agent. She had been successful in this field. He would also help her financially with her move and getting her established in the new location. [ 44 ] The Father currently assists the mother financially by frequently paying for her groceries when the children are with her. He also pays $400 per month for July and August, and has loaned her money. He still thinks that the Mother has financial difficulties. The Mother [ 45 ] The Mother moved to Calgary about 12 and a half years ago and has lived in Calgary ever since.

She left school when she completed grade 10. Since then, she has completed her grade 12 equivalency, and took a few real estate courses following her divorce from the Father. She completed the real estate programme in April of 2006, which made her a licensed real estate agent. She stopped doing real estate in 2009, as it was too expensive and her health situation did not lend itself to a career in real estate. She tried it again for a short period in 2010, but she made no sales.

She is currently unemployed, although she does some child care in her neighbourhood. [ 46 ] The Mother ’ s primary reason for her lack of employment is that she injured her back several years ago. This has been an ongoing issue. She had surgery in September of 2007, which resolved her issues for several months. She then bent over and re-injured her back. The primary limitation that this places on her is that she never knows from day-to-day how her back will be. She says that some days, she wakes up in “ total lock-down ” which will not allow her to sit or stand for any length of time.

She cannot sleep in a bed, so she must sleep for a few hours here and there. [ 47 ] She has an income of $1,600 per month form income assistance. Three weeks before the hearing before this Court, she made an application for Assisted Income for the Severely Handicapped ( “ AISH ” ) and is currently on a waiting list for that programme. She recognizes that if this Court were to award her primary care of the children, she would require a higher income. She stated that she would have to “ find a job. ” Until recently, she has not made any attempts to seek employment. Her purpose in seeking employment?

She said that “ now that RAB is living with her full time, she needs her car insured. ” Her efforts to seek employment are to “ ask around ” and look in the classified advertisements in the newspaper. When her counsel asked her to articulate her goal, she responded by saying “ start looking. ” The father ’ s counsel pointed out to the Mother that she made this same comment before Smith J three years ago. [ 48 ] As for employment, she testified that she will take any job that will accommodate her back issues. She would like to work from home on her computer, such as a position doing medical billing.

She also said that she might be able to return to real estate because she can work when she wants. However, she went on to say that in the past, she lost listing appointments because she was unable to move. As well, she is on numerous medications, including baclofen, Paxil and codeine. The parties presented this Court with no information on how this might affect her job prospects. [ 49 ] The Mother has had substance abuse issues. Before she met the Father, she had a year of cocaine addiction. She join Narcotics Anonymous and it was when she was with this organization that she met the Father. This was in 1996.

Ultimately, she recovered from this addiction. [ 50 ] More recently, during her marriage, she was drinking, as she put it, “ way too much. ” It was during this period that she and the Father separated. Although she “ has had a few slips, ” she has stopped drinking. Her children have never seen her with a drink in her hand. [ 51 ] As well, it was during her period of drinking that she injured her back. She was given various pain medications to treat her back issue. She became addicted to Percocet, which is the trade name for a drug which is a combination of oxycodone and paracetamol.

She attended a residential detox centre to cure this addiction. She left before she completed the programme. It was at this time that the Father took the children out of the home because he was concerned about the children ’ s safety. Soon after, the Mother sent the Father a letter of apology. She testified that she sent this letter because her “ life was in the sewer because she fucked up. ” The Mother testified that now, she does not use drugs or drink. [ 52 ] In April of 2012, her doctor prescribed her for medical marijuana. She obtained one order and tried it, but it did not work for

her. The order expired and she disposed of it. Before she tried this, she discussed it with the Father and the children. [ 53 ] She testified that RAB is the “ light of both of their lives. ” Beyond how both of her parents describe her, the mother described RAB as being a great role model to all of the children in their neighbourhood and a leader in her group of friends. With respect to the issue concerning RAB ’ s missed school assignments, the Mother stated that RAB had missed quite a bit of school in September and October of 2012.

She said that RAB “ is not the best for getting the assignments she missed when she is not at school. ” In other words, it was RAB who did not follow-up with the teachers as to whether she had missed any assignments. The Mother testified that she would ask RAB whether she had homework and RAB would say no. Of course, because RAB had not picked up the assignments, this is what she thought. [ 54 ] Ultimately, as the Father testified, he got the list of the missed assignments from the teachers at the parent-teacher night.

The Mother said that RAB “ was shocked that she missed that much. ” The Mother then arranged a meeting with the teachers for the next week, when she met with principal and RAB ’ s teachers. They discussed why RAB did not complete the homework, and came up with a plan that RAB would use to get the homework finished. RAB “ breezed through it all in no time ” and she is now back to Bs and Cs. Interestingly, the Father testified that RAB was a student that received As and Bs.

When reminded of this, the Mother said that RAB “ can definitely be doing better. ” [ 55 ] As for RAB ’ s stomach problems, the Mother testified that it might have been the stress that RAB was experiencing when RAB moved out of the Father ’ s house. RAB was not sure how the Father would react. Her stomach problems seem to have resolved.

Thus, the Mother testified that she told RAB, “ this is it with missing school with tummy aches. ” RAB has made a commitment to her that she will be in school. [ 56 ] As for the parent-teacher interviews, the Mother testified that she and the Father “ do not always go together; often, one will go and the other will take care of the kids. ” Besides, she stated, “ it would be stupid to go separately.

It would be a waste of time for the teachers. ” She could not recall why she did not go to the most recent parent-teacher interview. [ 57 ] As for her involvement in school activities, the Mother testified that she has tried to volunteer as much as possible. She said, however, that she is hampered in her involvement at this time because she cannot drive. As a result, the Father is more involved with the children ’ s school activities. She described the activities in which she was involved. Most of them were several years ago.

Recently, however, she was involved with RAB ’ s drama productions. [ 58 ] The children are currently seeing the Mother ’ s family physician, Dr. Rodney Paine. The Mother started seeing Dr. Paine in 2006 and the children started seeing him soon after that. The Mother describes Dr.

Paine as being “ fantastic ” and that he “ loves the kids and they love him. ” This Court finds that this description, and many of the descriptions that the Mother gave as being exaggerated and over exuberant. [ 59 ] Interestingly, the Mother described RAB as being “ not a big communicator ” and she “ does not express herself readily to anyone. ” This was a strange comment inasmuch as she described RAB earlier as being “ sweet, strong, kind, funny and independent. ” How would the Mother know all this if RAB does not express herself readily to anyone? [ 60 ] In addition to the personality traits reviewed earlier, the Mother testified that AMB is a very sensitive individual, who is respectful and affectionate.

However, she said, he is not interested in school to the point that he would prefer not to go to school. [ 61 ] Although AMB is currently undergoing certain tests to determine whether he has attention deficit-hyperactivity disorder, she does not see it. She is, however, cooperating with the testing procedures. [ 62 ] The Mother says that HMMB wants to be with her older brother and sister; she is a “ tag-along. ” She testified that the children “ love each other very much ” and they are very protective of each other.

She specifically said the AMB and HMMB “ are tight. ” [ 63 ] The Mother described the current arrangement in the same manner as did the Father. The one difference, however, is that the Mother said that before the Father lost his job, when the children are not a school because they are sick, they will be in her care. Now,

the Father will take care of them when they are off school. She testified, however, that this is posing a problem because the children would prefer to stay with her [ 64 ] The Mother testified that, generally, the current arrangement is working, although it is not perfect. She said there are disagreements because the children want to spend more time with her, and they do not want to go home with the Father. The younger children also exhibit jealousy because RAB lives with the Mother. [ 65 ] The Father and Mother communicate every day concerning the children. Mostly, they discuss who is going to be where.

Their communication is through text-messaging and telephone. [ 66 ] The Mother testified that when RAB first moved in with her, she did not want to go to the Father ’ s place. The Mother told RAB that she had to go to the Father ’ s place every second weekend. After a couple of times, the Mother noted that RAB ’ s relationship with her Father was good, to the point where RAB has been spending more time with the Father lately. [ 67 ] With respect to AMB and HMMB, the Mother testified that she has almost daily arguments with them concerning their having to return to the Father ’ s place.

In particular, HMMB wants to have more one-on-one time with the Mother. [ 68 ] The Mother testified that she has a very close relationship with RAB. In fact, she said that she and RAB have the “ best relationship between a parent and child than anyone she knows. ” They are “ tight. ” [ 69 ] The Mother describes AMB as her “ main man. ” There is a different level of respect between the Mother and AMB, and the Father and AMB.

AMB cannot manipulate the Mother, whereas he can manipulate the Father. [ 70 ] The Mother said that she is close to all of the children, despite the fact that they did not live with her when they were growing up. She thought that it might be damaging to her children, but it has not. [ 71 ] The Mother feels very close to HMMB. She said, however, that she missed vital time with HMMB that she had with her two older children. As a result, she feels that there is something missing from their relationship. This does not, however, affect her relationship with HMMB.

The are now “ as tight as they could be. ” [ 72 ] Despite what Smith J said in the Parenting Judgment, the Mother denies that she is the “ fun parent. ” She feels that the Father tries to minimize her role in relation to the children. [ 73 ] The Mother went on to say that things are going so well for the children. She does not want to see them getting uprooted from their lives and take a chance that they will be as good somewhere else. In particular, she said that AMB is “ so good to his core ” and that this is a crucial time of his life.

She is scared what a move will do to AMB. [ 74 ] As for the Father ’ s relationship with the children, the Mother said that the Father and RAB have a good relationship; they love each other very much. Despite this, she says that RAB ’ s relationship with the Father is on a different level than the relationship between the Mother and RAB. As between RAB and her Father, the relationship is more superficial, whereas the love between RAB and the Mother is deep and genuine.

Generally, the children do not feel they can express emotion to the Father in the way they do with the Mother. [ 75 ] She feels that, generally, communication is the biggest issue between the Father and the children.

[ 76 ] The Mother described HMMB as “ daddy ’ s little girl. ” HMMB is spoiled in a way that the older two children are not. She attributes this to “ circumstances. ” The Mother was much more strict with the older two children than with HMMB. [ 77 ] After the Parenting Judgment, the Mother denies that she told the children that “ we lost. ” The Mother was disappointed. The children knew that the Mother always wanted them and she will always want them. They are loved and wanted and she wants them to know this. [ 78 ] The Mother currently lives in a town home, which is part of a town home complex.

She has lived there for almost 3 years. Before she moved into her current accommodations, she moved frequently for various reasons, such as unpleasant neighbours, unsafe situations and financial reasons. At one point, she lived in her van. [ 79 ] In her current residence, Calgary Housing pays part of her rent. Even then, she has had difficulty paying her rent and has asked the Father for his financial help. [ 80 ] Her unit is part of 6 town homes, that are connected. It is 1,200 square feet with 3 bedrooms and 2 bathrooms. The younger children share one bedroom, with bunk beds and RAB has a bed room to herself.

When questioned further as to the appropriateness of a 12-year old boy sharing a bedroom with his 9-year old sister, the Mother said that she thought that soon, she would give him her bedroom, as she sleeps on the couch because of her back problems. [ 81 ] The Mother ’ s neighbourhood is “ filled with kids. ” Calgary Housing is across the street from them. She has “ great neighbours ” and the children ’ s friends live close by. [ 82 ] She does not receive child support from the father. She testified that he did not pay the money pursuant to the Parenting Judgment, although he adamantly stated that he did.

He did give them money to go camping and she confirmed that he has given RAB money to buy groceries. She pays for their expenses from the small amount of money she receives and she has attended the Food Bank. When RAB needs clothes, the Mother lets the Father know. [ 83 ] The Mother testified that she wakes RAB up at 7:00 a.m. on weekdays. There have been occasions when RAB has missed her bus, in which case, RAB has called her Father for a ride.

She has also called him on other occasions because, as the Mother describes her, “ she is lazy. ” [ 84 ] When the children arrive at her place after school, she gives them snacks, such as fruit with whipped cream. As well, she has things like soups and peanut butter around for the children to snack on. For dinner on weekends, she will feed them hamburger, Ichiban, tacos, pizza and spaghetti. AMB and HMMB eat their supper at the Father ’ s place. The Mother said she would feed them dinner, if the Father bought the groceries. [ 85 ] During the week, RAB will go to bed at 10:00 p.m.

The Mother leaves RAB ’ s bed time on weekends open, but she said that RAB “ needs her sleep. ” As for HMMB, she is in bed on weekends no later than 9:00 p.m., because if she does not get her sleep, she is “ cranky. ” During cross-examination, however, the Mother said HMMB might stay up much later than that. [ 86 ] On weekends, the Mother testified that she will spend time with them doing their home work. She will ask them whether they have homework.

The Mother provided little detail in this regard. [ 87 ] The Mother has a 2005 Dodge Caravan, which she describes as “ great. ” The vehicle is in good shape, but it has not been operational since the Spring of 2012. She could not afford to pay for the insurance, but it is “ sitting there waiting to be driven. ” If she needs a vehicle, one of her neighbours will lend her a car, or she takes public transit. [ 88 ] When she discussed the possibility of the children moving away with their father, the Mother testified that RAB said that “ she is not going anywhere ” and would not go even if the Mother went.

The reasons are obvious; RAB has a new boyfriend and an active

social life in Calgary. [ 89 ] As well, AMB does not want to leave for the same reasons that RAB provided, other than any romantic relationship. He is scared to leave. The Mother said that AMB will not leave without her. [ 90 ] The Mother avoids talking to HMMB about this. However, HMMB did make her feelings known to the Mother; she does not want to move. [ 91 ] The Father testified that the Mother said originally that “ if you have move, we all have to move. ” The Mother testified that after she made this comment, they did not discuss the issue.

Months later, he asked about this and she said that she had thought about it and she decided that she was not uprooting herself and moving. Her reason? She does not want to be dependent on him, and her life is in Calgary and the children ’ s lives are in Calgary. She does not think she and the children should leave. She did, however, say that she would move “ if she had her own home. ” [ 92 ] When counsel presented the Mother with the hypothetical situation of the Father moving and the children remaining in Calgary, she said that the children would miss the Father, but their lives will continue.

She would encourage the children to visit the Father. Anytime he visited Calgary, he would be welcome to stay in her home. Part of the child support she would receive would be put aside for the children ’ s travel to see the Father. [ 93 ] The Mother testified that the children ’ s education has always been important and they have been really lucky to have “ amazing schools. ” There are no drug or gang problems, and it would scare the Mother if the children had to go to a different school.

Despite the Mother ’ s statement concerning the importance of her children ’ s education, she has taken the children out of school on a few occasions just “ to hang out. ” She gave the example by saying, “ if it was a beautiful day, why not go to Kananaskis? ” [ 94 ] If they had to move without her, she does not know what would happen. She thinks the children would get angry about not being able to spend the night at her house. They have never been away from each other for a long period of time.

She said it would create “ incredible anger ” in AMB. [ 95 ] She said “ there are times that the kids need their Mom ” and “ it is definitely in their best interests for them to stay. ” [ 96 ] When asked what steps she would take if the children were to remain in Calgary, she said that she needs a job. If she had a job, she could get child care. [ 97 ] The Mother was questioned on the Father ’ s plan to take the children camping and then to Disneyland. It would have been an extended period, but he invited the Mother to join them.

The Mother said that she would not, after the children had made it known to her that they did not want to do trips that were 2 weeks. Any more than 10 days would be too much. She testified that she encouraged the children to take this trip with the Father, but they did not want to go. [ 98 ] During cross-examination, the Mother said she would move, along with the Father, if there were a romantic link between them. However, she adamantly stated that she would not move and “ leave everyone I know to go to where the only person I know is [the Father].

This is not healthy! ” [ 99 ] During cross-examination, the Mother admitted that she has no family in Calgary. She has, however, made many friends in her neighbourhood. [ 100 ] The Mother admits that the Father has been a good provider. As well, he contributes his weird sense of humour to his children and his personality is different from hers. The children get a sense of what “ normal ” is like from different people.

[ 101 ] When this Court asked the Mother what she would do if this Court ordered that the children move with the Father, she responded by saying that she would move, but that “ she would be forced to go. ” IV. Parties ’ Positions [ 102 ] The Father argues that, as found by Smith J in the Parenting Judgment, it continues to be in the children ’ s best interests (including RAB) that they remain in his primary care, even if he must relocate for new employment .

He also argues that it is detrimental to the children to be in the Mother ’ s primary care. [ 103 ] If this Court provides the Father with permission to move, he is prepared to assist the Mother in a move and set-up in the same city in which he and the children reside.

This will facilitate the Mother ’ s access in accordance with the Parenting Judgment. [ 104 ] The Mother argues that there is tension between the older children and the Father, not because of this application but because the Father has been inflexible when it comes to the care and upbringing of the children. [ 105 ] If the Father is required to move for work, the Mother is prepared to make arrangements to assist the Father's access with the children. She is willing to accept child support arrangements to allow the children or the Father to travel for access.

She is also prepared to allow the Father to reside with her and the children while he is exercising access. [ 106 ] The children already spend time with each parent daily. If the Father begins work elsewhere, he will not have the same time to spend with the children as he currently has. There would be minimal disruption if the children remained with the Mother. [ 107 ] Finally, the Mother argues that the children have formed significant roots in their schools and the community. A change of location would not be in their best interest. V.

Issues [ 108 ] The issues before this Court are whether this Court should allow the Father to move the children with him to Toronto. If this Court so permits him, it must determine how the access regime will be changed, and how best to facilitate the Mother ’ s access. VI. Legislation [ 109 ] The legislation that informs this decision is the Divorce Act , RSC 1985, c 3 (2nd Supp) [ Act ]. The Act ss 16 and 17, provide as follows: 16.

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or access to, or the custody of and access to, any or all children of the marriage. ...

(6) The court may make an order under this

section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

(7) Without limiting the generality of subsection (6), the court may include in an order under this

section a term requiring any person

who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. 17.

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, ... (

b) a custody order or any provision thereof on application by either or both former spouses or by any other person. ...

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought. ...

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact. VII.

Discussion [ 110 ] Throughout this trial, the parties have heard this Court and their counsel refer to the "best interests of the child." This comes from Act s 16(8) How does a court determine what are in the children's best interests? It must consider a myriad of factors, including the following non-comprehensive list provided by Perras J in C(SL) v C(DA) , 2000 ABQB 466 , [2000] AJ No 815 [ C(SL) ] at paras 11-12 :

(1) The provision of the necessaries of life including physical and health care and love.

(2) Stability and consistency and an environment that fosters good mental and emotional health.

(3) Opportunity to learn good cultural, moral and spiritual values.

(4) The necessity of setting realistic boundaries on conduct and fair and consistent discipline in teaching appropriate behaviour andconduct.

(5) The opportunity to relate to and love and be loved by immediate and extended family and opportunity to form relationships.

(6) Opportunity to grow and fulfil his/her potential with responsible guidance. ...

(7) To have optimal access to the non-custodial parent in order to encourage and foster a good relationship.

(8) To be with the parent best able to fulfil child's needs.

(9) And the provision of an environment that is safe, secure, free of strife and conflict, and positively guides the child in development. [111] This Court has considered an amalgam of these factors and others, and not just one or more of them, when deciding what is inthe best interests of the children, and which parent is able to meet their needs. This Court has not focussed on one particular factor, andeven if it had, it is not worthwhile to articulate it, as this might lead the other parent to feel that if they were to change that one factor thisCourt might come to a different conclusion.

That would give them false hope, which this Court does not intend to provide. This shouldnot surprise the parties, as this Court is not focussed on the parents, but on the best interests of the children. [112] The leading case that deals with so-called “mobility issues” is the Supreme Court of Canada’s decision in Gordon v Goertz, (SCC), [1996] 2 SCR 27, [1996] 5 WWR 457 [Gordon]. This Court has relied heavily on the reasons for that decision.It is best to go the end of that decision, as the court provides us with a

summary of the law when trial courts will consider when facedwith these types of issues. The

summary is as follows: 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4.

The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitledto 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 thecase. 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. Gordon at para 49 . [ 113 ] No one argues that there has been, or at least will be, a material change in the children ’ s situation. The Father has obtained a job in Toronto, which will require him to leave Calgary. This is certainly a change in the Father circumstances, but it is also a change in the children ’ s circumstances, as they have spent a great deal of time with both parents.

Now, they will spend more time with one parent, or the other, and there will not be daily access or, at least, frequent access by the other parent. Thus, material change element is met. [ 114 ] This Court must then embark on a “ fresh inquiry ” into what is in the children ’ s best interests. However, that fresh inquiry is not a de novo hearing. This Court cannot ignore Smith J ’ s findings and, in fact, in Gordon , the Supreme Court of Canada said that this “ fresh inquiry ” is based on Smith J ’ s order.

This Court must only consider “ new circumstances. ” This is not an indirect route to appeal of Smith J ’ s decision. In fact, this Court “ must assume the correctness of the decision and consider only the change in circumstances since the order was issued ” : Gordon at para 11 . [ 115 ] However, this Court must not simply defer to Smith J ’ s views.

It must “ consider the application anew, in the circumstances that presently exist. ” In this case, this is especially important inasmuch as the parents have not strictly abided by the terms of Smith J ’ s order, but have “ tweaked ” it if they considered it to be in the children ’ s interests. For example, RAB now lives with the Mother, of her own accord. The Father did not agree with this change, but allowed it to happen.

This change was not in Smith J ’ s contemplation. [ 116 ] In Gordon at para 22 , the court said that “ Parental conduct, however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child. ” This is in keeping with Act ss 16(9) and 17(6).

Smith J commented on parental conduct in her reasons, but her comments were in keeping with the Gordon exhortation and Act . [ 117 ] The Supreme Court of Canada said that “ Usually, the reasons or motives for moving will not be relevant to the custodial parent ’ s parenting ability ” : Gordon at para 23 . It went on to say that “ absent a connection to parenting ability, the custodial parent ’ s reason for moving should not enter into the inquiry ” : Gordon at para 23 . The parties acknowledge that the reason for the Father ’ s move is that there is no work within his area of expertise in Calgary.

His move to Toronto will have a beneficial financial impact for his children inasmuch as he will be able to provide for them financially. He has been unemployed for the past year. There is no suggestion that his reason for moving is to thwart the Mother access to the children. In fact, he has offered to move her to Toronto, so that she could be nearer to the children.

[ 118 ] To this point, this Court has spoken about the best interests of the children . It is cognizant, however, of the following from Gordon at para 44 : ... Parliament did not entrust the court with the best interests of most children; it entrusted the court with the best interests of the particular child whose custody arrangements fall to be determined. Each child is unique, as is its relationship with parents, siblings, friends and community.

Any rule of law which diminishes the capacity of the court to safeguard the best interests of each child is inconsistent with the requirement of the Divorce Act for a contextually sensitive inquiry into the needs, means, condition and other circumstances of "the child" whose best interests the court is charged with determining. ... The inquiry is an individual one.

Every child is entitled to the judge's decision on what is in its best interests ... [Citations excluded]. [ 119 ] The Supreme Court of Canada concluded its recitation of the law by saying the following: While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration.

The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability: Gordon at para 48 . [ 120 ] This Court felt that reviewing Smith J ’ s decision before it heard the viva voce evidence from the parties would not be helpful. In fact, it was not until it heard the parties ’ final submissions that it made the decision to review her reasons. Why?

This Court wanted to form its own impressions on the parties ’ positions, demeanour, and credibility, as well as an overall sense of the context of this case. Interestingly, this Court came to many of the same conclusions as did Smith J concerning many of these matters. [ 121 ] At this moment, all of the children have the best possible scenario in the circumstances. They are able to spend time with the Father and with the Mother. They enjoy spending time with each. As well, they spend time with each other. Like every sibling scenario, that can be good or bad, depending on the circumstances.

However, none of them spoke negatively about the others and, this Court can infer that they will miss each other ’ s company or, at least, presence, if this Court were to separate them. [ 122 ] This “ best possible scenario ” is going to change, now that the Father has received a job offer that will require him to move to Toronto. [ 123 ] Not surprisingly, both parents in this case attempted to tailor their testimony to fit within the best interests of the children test, when, in fact, the parent seemed to be looking after their personal interests. This was more evident in the Mother ’ s testimony.

For example, when the Father consented to RAB moving in with the Mother, he did not consider RAB ’ s best interests, but his own. He wanted to preserve their relationship. The question he should have asked was whether the Mother would take care of RAB ’ s needs, using factors such as those that Perras J gave us in C(SL) .

The Father might have arrived at the same conclusion, but the analysis would have been more child-centred. [ 124 ] The Mother testified that things were going very well for the children right now and she does not want to see them uprooted and take the chance that they will do well somewhere else. Later, she testified that she would move, along with the Father, “ if there were a romantic link between them. ” As well, she said she would move “ if she had her own home ” meaning that if the Father bought her a place in Toronto, she would move. She does not want to be financially dependent on the Father.

This discussion, on its face, appears to be child-centred, but, in fact, it is Mother-centred. Her not wanting to move has nothing to do with her children ’ s best interests, but what she wants. She has relied on the Father financially and continues to rely on him, because she has no job and, right now, she is on social assistance.

This is in keeping with the Parenting Judgment where Smith J found that “ Despite [the Mother ’ s] professed interest in doing what is best for the children, I find she defines their best interests in alignment with her own wishes ” : Transcript of Proceedings, June 11, 2010, p 6, ll 18-19. [ 125 ] The Mother testified that the children ’ s schooling is very important. Why then would she take the children out of school just “ to hang out ” ? Just because “ it was a beautiful day, ” why would the Mother take the children out of school to go to Kananaskis? Of course, the children love hanging out with their Mother.

Who wouldn ’ t? But is it in the children ’ s best interests to learn that they can shirk their responsibilities “ just to hang out ” because “ it ’ s a beautiful day ” ? Again, the Mother is defining the children ’ s best interests by her best interests. For some reason, the Mother did not seem to find anything wrong with this approach because almost 3 years ago in the

Parenting Judgment, Smith J said the Mother “ loves to have full days with the children and sometimes removes them from school to accomplish this wish ” : Transcript of Proceedings, June 11, 2010, p 14, ll 7-8. Within the context of this comment, it was clear that Smith J was not providing the Mother with a compliment. [ 126 ] One very important comment that Smith J made in the Parenting judgment was as follows: The children should not be involved in adult discussion. It turns them into manipulators and gives them the power in the family where it does not belong.

Transcript of Proceedings, June 11, 2010, p 14, l 41, p 15, ll 1. The Mother does not hesitate to speak to the children about the proceedings before this Court. That is wrong and it flies in the face of Smith J ’ s comment. More shocking was the fact that RAB swore the contents of an affidavit in these proceedings and came to court with the Mother. How can the Mother possibly think this is the correct way to parent a child? [ 127 ] The Father ’ s parenting style has been hampered somewhat by the Mother.

She does not appear to support him when he feels that he must exert authority over the children ’ s behaviour and activities. It was evident that the Mother takes a less firm approach to child rearing and leaves decisions in the hands of the children. The recent example of the Mother allowing their 12 year old son to have a sleep over at a 13 year old girl ’ s house was irresponsible, and the Mother later acknowledged this. As well, in the Parenting Judgment, Smith J made an order concerning the children ’ s primary residential care.

If the children do not want to go to the Father ’ s home, the mother should have encouraged it, and not discourage it. [ 128 ] The Mother is not in a good position financially. She has not worked since 2008, although she tried to re-enter the real estate sales market in 2010. She continues to have back problems. She testified before Smith J that “ her plan is to return to the real estate business ” : Transcript of Proceedings, June 11, 2010, p 7, l 16. Smith J went on to say in the Parenting Judgment: About two years without an income and an inability to wake up in the mornings, does not demonstrate vitality.

On both of those accounts she hopes to do better, but hoping is different from doing. Transcript of Proceedings, June 11, 2010, p 7, ll 20-23. Before this Court, she testified that if this Court were to award her primary care of the children, she would have to “ find a job. ” Her efforts to this point have been meagre, at best, and non-existent, at worst. Furthermore, she has applied for AISH. Does this mean that her disability prevents her from working, or is she looking for a supplement to her income?

The Mother testified that she could do medical billing because she could sit at her computer, and this would accommodate her back issues. Has she tried to obtain employment doing medical billing? From her testimony, it seemed that she had not. This raises concerns in this Court ’ s mind as to whether she has even considered working. [ 129 ] Of more importance, however, it raises concerns in this Court ’ s mind concerning the Mother ’ s general credibility.

Furthermore, as mentioned earlier, this Court finds that the Mother has attempted to tailor her testimony to show that she has made improvements in the areas she felt Smith J identified as her shortcomings. For example, the Mother attempted to show this Court that she is prepared to parent the children with a “ firm fist. ” This Court suspects that this testimony was tailored in response to Smith J ’ s finding that the Mother was a “ fun-loving, but inconsistent parent ” : Transcript of Proceedings, June 11, 2010, p 13, ll 34-35.

RAB was having stomach problems, which the Mother testified might have been related to the stress RAB was feeling when she moved out of the Father ’ s house. Because the stomach problems seemed to have subsided, the Mother testified that she told RAB “ this is it with missing school with tummy aches. ” This seems completely irrational. If RAB had stomach problems, how can “ this ” be “ it ” ? Rather than taking a “ firm- fisted ” approach, would it have not been more rational to take RAB to a physician (or, better yet, a counsellor) to find out what is going on?

Or was this an indication that the Mother knew that RAB did not really have “ tummy aches ” and she would accede to RAB ’ s request to stay home from school to stay within RAB ’ s “ good books ” ? This Court has no answer to this strange response on the Mother ’ s part.

[ 130 ] Thus, where the Father ’ s testimony and the mother ’ s testimony conflict, this Court prefers the Father ’ s testimony. For example, the Father testified that after Smith J rendered her decision the Mother told the children “ bad news, we lost. ” The Mother denies this. This Court finds that it is more likely than not that she said this to one or more of the children. This undermined Smith J ’ s decision in the children ’ s eyes and could have set the stage for a “ him versus us ” perception.

That type of comment was inappropriate and uncalled-for. [ 131 ] In the Parenting Judgment, Smith J found that, “ It is noteworthy that [the Mother] has not fully cared for the children even on her time with them. [The Father] and the nanny provide assistance and/or back up ” : Transcript of Proceedings, June 11, 2010, p 12, ll 37- 39. Not much has changed. The Mother testified that she must rely on the Father because she cannot afford to insure her vehicle.

That, however, does not explain why she does not follow-up with RAB concerning homework assignments, why she did not attend the recent parent-teacher interviews ( “ it would be stupid to go separately ” ), or why she is not concerned and following-up with the possibility that AMB might have attention deficit issues ( “ I don ’ t see it ” ). [ 132 ] This Court finds that the Father ’ s relationship with the children is not “ superficial. ” For the Mother to suggest that it is would be unfair, as she does not see how the children react with him when she is not around. [ 133 ] The Mother described her relationship with RAB as the “ best relationship between a parent and child than anyone she knows. ” Earlier, she said that RAB is not “ a big communicator ” and “ does not express herself readily to anyone. ” If RAB does not communicate with the Mother and does not express herself ” how can they have the “ best relationship. ” This evidence is not consistent.

She also said that RAB is “ great role model to the neighbourhood children and a leader in her group of friends. ” Later, the Mother described RAB as “ lazy. ” Again, this is inconsistent. [ 134 ] She also did not appreciate that it might be inappropriate for a 12 year old boy to be sharing a bedroom with a 9 year old girl. If fact, until she was cross-examined, it appeared to this Court that she had not even thought about it, or how to deal with it.

Her response was that she would sleep on the couch and the 12 year old son would sleep in her bedroom. [ 135 ] Although the Mother has many friends in Calgary, she has no other familial connections and, of course, she is not working. It is clear to this Court that the only reason she refuses to move from Calgary, is that she thinks the children do not want to move and she feels that she will take their side, and they will support her in her reasoning. But she misses the idea behind these proceedings. It is this Court that determines what it feels is in the children ’ s best interests.

The children do not control these proceedings. [ 136 ] The final factor that this Court must consider is the views of the children, and how a move from Calgary to Toronto might disrupt the children consequent on removal from their schools and the community they have come to know. This Court is assisted, in part, by a voice of the child report that Evelyn Wotherspoon provided to it on July 23, 2013 (the “ Report ” ). Ms Wotherspoon interviewed each parent and each child, on very short notice.

Both counsel consented to Ms Wotherspoon conducting the interviews and providing this Court with her objective report. [ 137 ] What became clear from the Report is that all of the children are conflicted when it comes to this issue. RAB has a very rational and thoughtful view of the situation, but it appears to Ms. Wotherspoon, and this Court agrees, that RAB ’ s concern with moving is not for herself, but for the Mother ’ s well-being. She does not want to move, but on thinking about it, she told Ms Wotherspoon that: ... the timing was probably ideal for a move because she is finishing Jr.

High and would be splitting up from her friends anyway. She also talked about the ‘ drama ’ among her friends in Jr. High and thought that in some ways it would be okay to leave right now. She agreed that she is a very social and popular student and was confident that she would make new friends quickly. Report p 5. This is especially so if the Mother were to move with them to Toronto.

[ 138 ] AMB, the 12 year old son, does not want to move. He was adamant. His main concern was that if he moved to Toronto, he would not see the Mother or he would see very little of her. Not surprisingly, he was also concerned that he would be leaving his friends. He feels he has a say in where he is going to live, and he would be angry if this Court were to order that he move to Toronto.

An interesting, and insightful comment that he made is that he wished “ everything was normal. ” This Court assumes that his wish is that he had a “ normal nuclear family ” but it is not clear that this is what he meant. [ 139 ] HMMB, the 9 year old daughter, was very young when the Father moved away from the Mother with the children. Accordingly, during her upbringing she was not as close to the Mother. She also said that she did not want to move and split the family. She said this to Ms Wotherspoon without prompting.

Ms Wotherspoon found HMMB ’ s initiative to be somewhat unusual. [ 140 ] The Report and Ms Wotherspoon ’ s testimony indicated that all the children will require counselling no matter what the result of these proceedings. This Court agrees with that observation fully, and recommended it to the Father and the Mother in open court. [ 141 ] In her impressions, Ms Wotherspoon said the following: It was apparent to me that the children have been privy to adult conversations that were likely inappropriate for them to hear.

It was apparent that the children had discussed my interview with one or both parents prior to attending the session. Several of [AMB and HMMB] ’ s comments rang false to me. I also question why [AMB] is so sure that his mother will not be able to visit him in Toronto and why he would think he could not visit her. He was very certain that this was true. [RAB] was less concerned about leaving her friends than her mother had indicated. She was more concerned about being separated from her mother. The older two children both worried about what would happen to their mother if they move to Toronto with their father.

All three children will be upset if they are separated from their mother and will likely be highly resistant to a move, at least initially. Report p 8 [ 142 ] As with most situations involving relocation, the children ’ s social network will be disrupted. That is normal and, undoubtedly, the children will be upset by this prospect. The unknown is likely troublesome to them. Ms Wotherspoon observed that all the children are “ talkative, intelligent and insightful ” : Report p 8.

This, she says, makes them ideal candidates for counselling, but from this Court ’ s perspective, it also means that they will adjust to any environment. VIII. Conclusion [ 143 ] Based on the Gordon factors, this Court finds that it would be in the children ’ s best interests to relocate with the Father to Toronto. After hearing the testimony of the Father and the Mother, and seeing them respond to questions that counsel put to them, it finds that very little has changed since Smith J rendered the Parenting Judgment. The major change, however, is that RAB now lives with the Mother.

This Court orders that RAB relocate to Toronto with the Father. However, if RAB refuses to leave, this Court will not force her to leave. It only states that her best interests would be served by living with the Father. [ 144 ] As for the Mother ’ s ongoing access, for now, the parties must try to determine how best to accommodate this, if the Mother chooses to remain in Calgary. The Father has stated that he will assist the Mother in her move to Toronto, if she chooses.

If she so chooses, they might be able to work out an access regime much like the one that exists in Calgary. [ 145 ] This Court said to the parties that no matter what it decides, they must, at least to the children, provide their parental support and encouragement. This is a difficult time for the children and it will be made worse without such support and encouragement. Heard on the 14 th day of March, 2013 and on the 23 rd day of July, 2013.

Dated at the City of Calgary, Alberta this 29 th day of July, 2013. K. D. Yamauchi J.C.Q.B.A. Appearances: Louise P Campbell, QC for the Plaintiff Robert K Omura for the Defendant Mark H Paidra for the Children of the Parties _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice K. D. Yamauchi _______________________________________________________ Style of Cause and Citation line have been corrected from B(DR) v B(TL) to the correct Style of Cause and Citation line of DRB v TLB. In paras 41, 55 and 84 the names of the children were changed to initials.