C.L.S. v. B.R.S., 2013 ABQB 552

Court of Queen ’ s Bench of Alberta Citation: C.L.S. v. B.R.S., 2013 ABQB 552 Date: 20130920 Docket: 4803 162086 Registry: Edmonton Between: C.L.S. Plaintiff - and - B.R.S. Defendant _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Don J. Manderscheid _________________________________________ ______________ 1. Introduction

[ 1 ] On September 16th, 2013, I rendered an oral decision in regards to the case at bar. At that time, with agreement of Plaintiff and Defendant counsel, I advised that formal reasons for judgment would be filed no later than September 20th, 2013. These are those formal reasons. [ 2 ] The principle issue in this case, is whether or not the Plaintiff mother should be permitted to relocate from Cold Lake to Calgary with the two children of the marriage (ages 3 and 5 ½ years). Secondarily, I will determine what parental access regime is appropriate. 2.

Factual Background [ 3 ] The Plaintiff and the Defendant entered the following Agreed Statement of Facts: 1. The Plaintiff, C.L.S., (the “Plaintiff”) and the Defendant, B.R.S., (the “Defendant”) were married on December 16, 2005, in Varadero, Cuba; 2. The Plaintiff and Defendant began living together in 2002; 3. The Plaintiff was born in 1973, in Red Deer, Alberta. She is presently 40 years of age. The Defendant was born in 1968, in Cold Lake, Alberta, and is presently 45 years of age; 4. At the time of the marriage, the parties were single; 5. There are two (2) children of the marriage, namely: 6.

A.C.L.S., born in November 2007; and 7. N.A.S., born in July 2010; 8. (herein collectively known as the “Children”) 9. The parties met in Calgary, Alberta. The Defendant was working as an associate dentist with Bedington Dental and the Plaintiff was employed at Husky; 10. The Defendant graduated from the University of Alberta Dental School in 1994. He began working as an associate in Calgary, Alberta, in 1996; 11. The parties remained in Calgary until approximately April of 2007, when they moved to Cold Lake, after the Defendant purchased his dental practice called M..

At the time of the move, the Plaintiff was pregnant with A.C.L.S.; 12. Prior to the marriage, the Defendant had purchased a home on the lake in Cold Lake. After the move to Cold Lake, the parties were living in this property until the separation. Subsequent to the separation, the Plaintiff continued to live in the home as at July she relocated to Calgary and has obtained employment there. Parenting arrangements remain unchanged; 13. The Defendant has remained in Cold Lake. He exercises access on a regular basis. [ 4 ] On May 3, 2013 Rooke A.C.J., issued court order (the “Rooke Order”): 1.

The Trial Coordinator in Edmonton shall

schedule a three (3) day trial for the parties for action number 4803 162086 commencing September 9, 2013, notwithstanding that the certification of one or more matters have not been met under Rule 8.4(3) (the ‘Trial’). 2. Pursuant to Rule 7.1(1) there shall be a severance of any property and spousal issues for the Trial to deal with all other issues relating to the children. 3. On an interim, without prejudice basis, the children of the marriage shall spend: a. every second weekend on Fridays with the Defendant. The Plaintiff will drop off N.A.S. at the Defendant’s home at 8:30 am.

The Defendant will pick up A.C.L.S. from school when she gets out. The Defendant will drop of the children at the Plaintiff’s residence on Friday evening at 8 pm; and b. every second weekend from Friday at 4 pm until Monday evening at 7 pm. The parties shall use their best efforts to determine their parenting arrangement during the summer school vacation and in the absence of an agreement being reached either party may attend at Court for direction. 4. The Court directs that: a. All Questioning of parties on issues in paragraph 2 shall be completed by July 15, 2013; and b.

Any Undertakings shall be completed by August 15, 2013. 5. The Defendant shall advance to the Plaintiff the sum of $25,000.00 which advance shall be characterized as an advance of matrimonial property that the Plaintiff has received when the parties ultimately divide or the Court divides their matrimonial property.

[ 5 ] When the Plaintiff relocated the Children to Calgary in July 2013 she did so without a court order to authorize that step. 3. Evidence [ 6 ] A number of witnesses testified at this proceeding. A. Plaintiff Mother [ 7 ] The Plaintiff is 40 years old and resides in Calgary with the Children in a home which she rents from her cousin at a monthly cost of $1000. This home has four bedrooms and is located in the area known as Mitchener Park. [ 8 ] The Plaintiff is currently employed in Calgary at a dental clinic in an administrative position as the treatment coordinator.

She works four days a week from Tuesday until Friday, from 7 a.m. to 3 p.m. The eldest child, A.C.L.S. is presently enrolled in an elementary school in Calgary. Both Children attend at a day home which is in close proximity to the elementary school. [ 9 ] The Plaintiff provided a number of reasons for why she moved to Calgary with the Children and wishes to remain in Calgary with the Children: 1. The Plaintiff’s employment at the Defendant’s dental clinic in Cold Lake was terminated. Her subsequent attempts to obtain employment in Cold Lake were unsuccessful.

The Plaintiff believes that her failure to obtain employment in Cold Lake as a dental assistant was somewhat impaired by her separation from the Defendant. She believes that dental clinics which compete with the Defendant may be reluctant to hire her due to her affiliation with the Defendant. The Plaintiff testified that she unsuccessfully applied to a number of dental assistant positions in Cold Lake (post-separation) either by e-mail or telephone. The Plaintiff was also unsuccessful when she applied for IT job positions in the Cold Lake oil industry. 2.

The Plaintiff has no family in Cold Lake other than the Children, the Defendant and his parents. She reports approximately three friends in Cold Lake and feels that she has “been experiencing ostracism in the community”. 3. The Plaintiff did not receive spousal support from the Defendant from the date of separation (August 15, 2012) until a consent order of E. A. Hughes J. (September 24, 2012) ordered the Defendant through his professional corporation to advance a lump sum payment to the Plaintiff of $50,000.00, such payment to be characterized by the parties at a later date. 4.

The Plaintiff has been the primary caregiver of the Children. The Plaintiff says this is because the Defendant would work extended hours at his dental clinic, including certain evening and weekend hours. She claims the Defendant’s relationship with his Children is less than it should have been, and that he has not been involved in the upbringing, education, and extracurricular activities of the Children. 5. The Plaintiff suffers from both asthma and eczema. She is currently receiving treatment for these conditions from her physicians in Calgary.

The Plaintiff has come to rely upon the expertise of these physicians over that of other physicians. She feels comfortable with their care for her asthma and eczema. 6. The Children have made new friends in Calgary and are settling well in their new home. The Plaintiff has extended family and friends in Calgary who have young families. The Children will have the opportunity to interact with these friends and family and their young children. Also, either one or both of the Children are or will be enrolled in certain extracurricular activities such as dance, soccer and ice skating. 7.

The Plaintiff's parents live in Red Deer which is in close proximity to Calgary. That permits the Children to have greater exposure to their maternal grandparents to whom the Children had developed a strong bond of affection. The Plaintiff says the Children have no strong emotional link to the Defendant’s parents. 8. The Plaintiff is employed in Calgary at a dental clinic in an administrative position as the treatment coordinator. This job will allow her to advance her career and be financially self-sufficient. 9. At times during the marriage the Defendant was verbally and physically abusive to the Plaintiff. B.

Plaintiff's Mother and Father [ 10 ] The Plaintiff's mother testified that she and her husband have developed a close and loving bond with the Children. She and her husband plan to relocate to Calgary if the Children are permitted to remain there. [ 11 ] She confirmed the Plaintiff’s evidence that the Plaintiff has been the primary caregiver of the Children and that the Defendant spent little time interacting with the Children when he was not working at his dental clinic.

The Plaintiff’s mother also stated she has witnessed the Defendant verbally abuse the Plaintiff. [ 12 ] The Plaintiff's father testified that during the period where the Plaintiff and the Children lived in Cold Lake that the maternal grandparents tried to visit each month. He further testified that after the date of separation, both he and his wife have made numerous trips to Cold Lake to facilitate access between the Defendant and the Children. C. Defendant Father [ 13 ] The Defendant is 45 years of age.

He testified that during the time that the parties resided in Cold Lake he has concentrated his time and energy on establishing his dental clinic and client base. That focus had the objective of providing support to his family. Since the date of separation, the Defendant resides with his parents in their home in Cold Lake.

[ 14 ] The Defendant testified why he believes the Children should be located in Cold Lake: 1. He has built up a successful dental practice in Cold Lake which will provide financial security for the Children. 2. He owns the matrimonial home in Cold Lake. That is where the Children have lived except for approximately a three month period in Calgary after the Plaintiff moved them there. 3. Prior to separation the Defendant assisted in the day-to-day care and parenting of the Children. The Plaintiff admits that in the past he perhaps should have spent more time with the Children as opposed to his dental practice. He now says that in the future he will

schedule his work hours to accommodate the needs of his Children. 4. The Defendant says his parents have a strong emotional link with the Children and provided photographic evidence of that (Exhibit 14). He testified that the paternal grandparents’ home is located close to the matrimonial home, and that the grandparents are willing to continue to provide child care for the Children at times when the Children are not in day care or school, or if the Defendant for whatever reason is unable to care for the Children. 5.

The Defendant testified that if this Court orders that the Children remain in Calgary then the Defendant would sell his dental practice in Cold Lake and relocate to Calgary. If so he may take employment as an associate dentist, which would cause a substantial decrease in his income. As an alternative he might purchase a dental practice in Calgary but if so it may take some time before that business is financially successful. 6.

The Defendant believes that although Cold Lake may be a smaller center than Calgary, it offers opportunities for the Children which are equal to or better than those available for the Children in Calgary. Prior to separation the eldest child, A.C.L.S., was enrolled in a French immersion program. That program remains accessible in Cold Lake but no equivalent is available at her current Calgary school. Other similar extracurricular activities which the Children are participating in in Calgary, such as: dance, soccer and ice skating, are also available in Cold Lake. 7.

Although the eldest child A.C.L.S. suffers from eczema and the youngest child N.A.S. suffers from asthma, both conditions can be adequately treated in Cold Lake. The Defendant does not dispute the Plaintiff’s medical conditions but argues those can be adequately treated in Cold Lake or in Edmonton. 8. The Defendant denies he physically or verbally abused the Plaintiff. He acknowledged that he and the Plaintiff have argued during the marriage, 9. The Defendant observed that the distance between Calgary and Cold Lake makes his access to his Children difficult.

Driving that distance is a 6.5 hour one-way trip, with a round trip of 13 hours. This logistic issue means that if he were to attempt to access his Children that the majority of his access time would be spent on the road. He says that is not in the best interest of the Children, particularly if travel occurs in winter months and under adverse road conditions. D. Defendant's Mother and Father [ 15 ] Both the parental grandparents testified.

They confirm that they have a close emotional link to their grandchildren, and that they are willing to assist the Defendant by providing child care as necessary. [ 16 ] They report the Defendant was always a caring and loving father towards the Children. They never witnessed the Defendant direct physical or verbal abuse to the Plaintiff. E. The Children [ 17 ] At several points the witnesses made statements of what the Children had said to them. I put little weight to such evidence, which is at a minimum hearsay.

I certainly acknowledge the important role of the Children’s opinion, however unless that opinion is solicited by a neutral source I will not place much consideration of conflicting reports of what the Children allegedly say. 4. Issues [ 18 ] This proceeding addresses two issues: 1. Is permanent residence in Calgary in the Children’s best interest? 2. What custodial and access regime would best serve the interests of the Children? 5. Law [ 19 ] The first and principle issue is whether I approve the Plaintiff’s relocating the Children from their home in Cold Lake to Calgary.

The parents dispute whether residence in one location or the other is in the best interest of the Children. [ 20 ] The guiding principle for a court which evaluates alternative locations for a child is what serves the best interests of the child. This is the paramount test. Any analysis and conclusion will turn on the facts of the case. Cases that evaluate this issue are therefore very contextual and highly individualized. What factors determine what may be in the best interests of one child may not necessarily apply equally to another child, even when the circumstances are quite similar.

[21] The Plaintiff and the Defendant have provided case law to support their positions: Plaintiff: B. (R.) v. B. (E.), 2010 ABQB 44, 80 R.F.L. (6th) 153; B. (R.) v. B. (E.), 2010 ABCA 229, 87 R.F.L. (6th) 254; Christmas v.Christmas, 2005 ABCA 213, 367 A.R. 172; Delaire v. Delaire, 2002 SKCA 71, 223 Sask.R. 229; F. (T.M.) v. F. (J.D.), 2010 ABQB801; Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, 134 D.L.R. (4th) 321; H.S. v. C.S., 2006 SKCA 45, 279 Sask.R.55; MacPhall v. Karasek, 2006 ABCA 238, 273 D.L.R. (4th) 151, leave refused [2006] S.C.C.A. No. 392; M. (N.) v.

K. (C.), 2012ABQB 388, 24 R.F.L. (7th) 386; Spencer v. Spencer, 2005 ABCA 262, 257 D.L.R. (4th) 115; Trisolino v. De Marzi, 2012 ONSC 3921,23 R.F.L. (7th) 293, affirmed 2013 ONCA 135, 23 R.F.L. (7th) 312; V.S. v. G.S., 2011 ABQB 818. [22] Defendant: Gordon v. Goertz; Bernard v. Kleim, 2003 ABQB 910; Fazel v. Fazel, 2004 ABQB 953; Spencer v Spencer;MacPhall v. Karasek, Brill v Brill, 2010 ABCA 229, 86 R.F.L. (6th) 266 7; P.O.T. v. B.E.M., 2010 ABCA 22; Hopkins v. Hopkins,2011 ABCA 372; C.G.R. v. S.D.W., 2011 ABQB 547; Rayner v Gratton, 2012 ABQB 617; N.M. v. C.K., 2012 ABQB 388, 24 R.F.L.(7th) 386; Pasha v.

Pasha, 2012 ABCA 183; Y.B. v. Y.E.B., 2012 ABQB 453; A.D.S. v. D.L.S., 2012 ABQB 508, M.O. v. C.O., 2012ABCA 297, 536 A.R. 266; Rozinsky v Rozinsky, 2013 ABQB 358; D.R.B. v.

T.L.B., 2013 ABQB 430; Milton v, Letch, 2013 ABCA248. [23] Although, I have found the judicial authorities cited by the parties to be of assistance in this Court’s analysis, the very fact-specific character of these matters means that results flow from the facts of the matter, and on that basis I will make only minimalreference to these authorities outside of the legal principles they provide. [24] The leading case on the issue of child location and relocation remains the Supreme Court decision of Gordon v. Goertz,(“Gordon”).

In Gordon, McLachlin J. (as she then was), writing for the majority, at para. 49 summarized the principles to determine thebest interests of a child. 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 needs ofthe child; (

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

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [25] Gordon at para. 13 indicates the starting point for any mobility application is to evaluate whether there is a material change inthe circumstances affecting the child: It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in thecondition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materiallyaffects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made theinitial order. [26] Relocation of children will always be a "change", and typically is a change which materially affects the circumstances of thechild and the ability of parents to meet its needs (para. 14): These are the principles which determine whether a move by the custodial parent is a material change in the "condition, means, needs orother circumstances of the child".

Relocation will always be a "change". Often, but not always, it will amount to a change whichmaterially affects the circumstances of the child and the ability of the parent to meet them. A move to a neighbouring town might notaffect the child or the parents' ability to meet its needs in any significant way.

Similarly, if the child lacks a positive relationship with theaccess parent or extended family in the area, a move might not affect the child sufficiently to constitute a material change in its situation.Where, as here, the child enjoyed frequent and meaningful contact with the access parent, a move that would seriously curtail thatcontact suffices to establish the necessary connection between the change and the needs and circumstances of the child.

[27] Once a material change in circumstances has been established, the Court must then embark on a “fresh inquiry” into thechildren’s best interests. In conducting this inquiry, Gordon instructs the court inquiry to account for the unique and contextual characterand circumstances [28] of the case (para. 44): 44 Fifthly and most importantly, a presumption in favour of the custodial parent has the potential to impair the inquiry into the bestinterests of the child. This inquiry should not be undertaken with a mindset that defaults in favour of a preordained outcome absentpersuasion to the contrary.

It may be that in most cases the opinion of the custodial parent will reflect the best interests of the child. Insuch cases, the presumption might do no harm. But Parliament did not entrust the court with the best interests of most children; itentrusted 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 tosafeguard the best interests of each child is inconsistent with the requirement of the Divorce Act for a contextually sensitive inquiry intothe needs, means, condition and other circumstances of "the child" whose best interests the court is charged with determining. "[G]eneralrules that do not admit of frequent exceptions can[not] evenly and fairly accommodate all of the varying circumstances that can presentthemselves": per Morden A.J.C.O. in Carter v. Brooks, supra, at p. 62. The inquiry is an individual one.

Every child is entitled to thejudge's decision on what is in its best interests; to the extent that presumptions in favour of one parent or the other predetermine thisinquiry, they should be rejected: "No matter what test or axiom one adopts from the many and varied reported decisions on this subject,each case must, in the final analysis, fall to be determined on its particular facts and, on those facts, in which way are the best interests ofthe children met" (Appleby v. Appleby, supra, at p. 315). 6. Analysis A.

Material Change in Circumstances [29] Unlike the case in Gordon, here there is no existing permanent custody order for which a parent seeks a variation. Neitherparent is properly described as the ‘access’ or ‘custodial’ parent. I therefore do not have to conduct the threshold material changeanalysis.

Nonetheless, as is the case here, where the Children have been in a shared custody arrangement with the Defendant beinggranted access on an “interim, without prejudice basis” every second weekend pursuant to the Rooke Order, the Plaintiff's decision torelocate to Calgary would clearly satisfy that requirement. [30] Applying the Gordon procedure, this Court must conduct a “fresh inquiry” into what is in the best interests of the child, with“regard to all of the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.”:Gordon, at paragraph 49. [31] The Alberta Court of Appeal in Brill v.

Brill at paras. 25-27 reviewed this process: 25 Although the father raises a number of issues, there is only one test to be applied to determine the custody of the children, namely,what is in the best interests of the children, having regard to all the relevant circumstances relating to the children's needs and the abilityof the respective parents to satisfy them: Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27 at paras. 17-19. 26 Gordon listed factors which a judge should consider in determining the best interests of the children including the existingarrangement and relationships between the custodial parent and children, the existing relationships between the access parent and thechildren, the effect of the move on the desirability of maximizing contact, the wishes of the children, the custodial parent's reasons formoving only where it is relevant to the parent's ability to meet the children's needs and the effect of the move on the children.

But thesefactors must be weighed in the context of the relocation. In weighing what is in the children's best interests, a court must consider theeffect of the move on the children and their relationship with both parents, the custodial parent and the access parent. 27 The majority in Gordon stated at para. 50: In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location mustbe weighed against the continuance of full contact with the child's access parent, its extended family and its community.

The ultimatequestion in every case is this: what is in the best interest of the child in all the circumstances, old as well as new? [32] In Spencer v.

Spencer, at paras. 17-18, Paperny J.A. cautioned that judges not to take into consideration any representationsby the respective parents as to whether they would or would not move with or without the children: 17 Specifically we are reminded in Gordon at para. 50, of the following: In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location mustbe weighed against the continuance of full contact with the child's access parent, its extended family and its community.

The ultimatequestion in every case is this: what is in the best interest of the child in all the circumstances, old as well as new? 18 In conducting this inquiry, it is problematic to rely on representations by the custodial parent that he or she will not move without thechildren should the application to relocate be denied. The effect of such an inquiry places the parent seeking to relocate in a classicdouble bind.

If the answer is that the parent is not willing to remain behind with the children, he or she raises the prospect of beingregarded as self interested and discounting the children's best interests in favour of his or her own. On the other hand, advising the courtthat the parent is prepared to forgo the requested move if unsuccessful, undermines the submissions in favour of relocation by suggestingthat such a move is not critical to the parent's well-being or to that of the children.

If a judge mistakenly relies on a parent's willingness tostay behind "for the sake of the children," the status quo becomes an attractive option for a judge to favour because it avoids the difficult

decision the application presents. [33] I will now apply these criteria and factors to the Plaintiff’s application. B. Witness Credibility and General Intent [34] First, I am very pleased to say that I believe both the maternal and paternal branches of this family very much care for theChildren. This is an instance where, with an appropriate custody and access structure, both parents and their relatives can providemeaningful benefit to the Children. [35] Witness credibility is a highly subjective and contextual analysis: White v. R., (SCC), [1947] S.C.R. 268.

Ifound the witnesses credible, with the exception that I am concerned that the Plaintiff is less than frank on the true reason for why shehas chosen to move to Calgary and in the manner she did. I will return to this subject. I also do not accept that any verbal or physicalabuse, by any person, occurred in this household, beyond the level of friction that is inherent in any stressed relationship. C.

The Existing Access and Custody Arrangements [36] At the time of separation, the parties entered into an informal arrangement where the Children remained with the Plaintiff andthe Defendant was granted access to the Children every second weekend. That access and custody arrangement between the partiescontinued until formalized in the Rooke Order.

This parenting regime remained in place until the date of trial. [37] During Closing Argument, Plaintiff’s counsel presumed the Plaintiff should be considered as the “custodial parent” and theDefendant, the “access parent”, and then quoted the Alberta Court of Appeal judgment of MacPhail v. Karasek, at para 45: 45 Canadians have the right to choose to separate and divorce, and they have the right to relocate, and it is not for the courts todetermine whether they like or agree with the reason for separating or moving.

Custodial parents should not be faced with a potentialloss of custody simply because they choose to move. Nor should a decision to move be seen automatically as a negative factor in theability to parent. [38] Plaintiff's counsel went to great lengths to emphasize that the Plaintiff, as the “custodial parent”, was entitled to specialjudicial consideration over and above that of the “access parent”. Plaintiff’s counsel puts the Defendant in that role. [39] I have carefully reviewed all the court orders in the Agreed List of Exhibits.

There is no indication this court has granted thePlaintiff custody or guardianship of the Children. The Rooke Order does structure access by the Defendant, however the fact remainsthere is no court order in place that grants either the Plaintiff or Defendant custody of the Children, although the Plaintiff may beconsidered as the de facto “custodial parent” by virtue of her absconding with the Children to Calgary, contrary to the spirit and intent ofthe May 23, 2013 order of Lee J. She is, without question, not the de jure “custodial parent”.

For that reason and until altered by an orderof this court, I conclude the Plaintiff and the Defendant can both be considered as having joint custody of the Children. They each are“custodial parents” in terms of the Children. [40] When the Plaintiff relocated with the Children to Calgary in July, she did so with full knowledge the Rooke Order had set fortrial on September 9, 2013 the issue of the Plaintiff’s intent to relocate with the Children to Calgary.

Despite an impending court reviewof this specific issue she chose to relocate anyway. [41] Upon relocating with the Children to Calgary, the Defendant continued to exercise access in accordance with the RookeOrder, or by agreement with the Plaintiff. I note that the Defendant is quite correct that the distances involved made the weekend accessscheme close to ineffective. [42] Before she moved, the Plaintiff had exclusive use of the matrimonial home, and a requirement that the Defendant stay at least5 meters from that property: Order of Bensler J., dated September 13, 2012.

The Defendant chose to live with his parents in Cold Lake,which is close to the matrimonial home. This arrangement fulfilled all persons and the Childrens’ home arrangements and permittedaccess by the Defendant to the Children. [43] I conclude the evidence clearly indicates that the access and custody arrangement which was in place prior to the Plaintiff'srelocation to Calgary worked well for the Children in these circumstances.

While in Cold Lake the Children had a very close relationshipwith both parents This arrangement provided maximum parental contact, as well as frequent contact with the paternal grandparents. ThePlaintiff’s parents also enjoyed frequent visitation and telephone contact with the Children. The Children, especially the eldest childA.C.L.S., was forming childhood friendships with some of her kindergarten classmates. [46] Since the Children moved to Calgary, the evidence leads me to conclude that both the frequency and quality of contact betweenthe Children and the Defendant is significantly diminished.

To a lesser extent, the same can be said for the Defendant’s parents. Themove has degraded and reduced contact between the Children and the paternal half of the family. The Children’s relationship with theDefendant and their paternal grandparents has deteriorated. [44] This result is an inevitable consequence of the logistics issues in travel between Cold Lake and Calgary, which precludes dailycontact between the Defendant and the Children. If I were to confirm the Plaintiff’s residence in Calgary the best interests of the childwould not be served in one of two ways.

Either the Defendant father would have minimal access to his Children, or he would be forced toabandon a very successful professional arrangement and that would mean less income available to support his Children. [45] What concerns me is from her testimony it appears the Plaintiff’s position that the virtual elimination of the Defendant, thefather of her Children, from their day to day life is acceptable. His role can be filled by her extended family and friends. She believes thisresult is in the best interests of the Children.

In doing so, the Plaintiff has shown a total disregard and understanding of the needs of the

Children for the involvement of their father in their life. [46] The Plaintiff excuses her position by the Defendant’s alleged lack of involvement with the Children. The Plaintiff simply argues that the Defendant has always been more concerned with developing his dental practice or his hobby of fishing. He was disinterested in his Children. She paints a picture of a father who literally ignores his family, all for the purpose of either personal gain or self-gratification.

In this sense, the Plaintiff points to the fact that the Defendant does not show emotion during the pickup or drop off of the Children. [47] Frankly, after hearing the evidence of the Defendant, I disagree. I accept the Defendant’s explanation of his controlled emotions; he does not wish to upset his Children during such a difficult time and when faced with uncertain times and circumstances. I accept the Defendant is an individual who would rather forego a conflict rather than entertain one. That attitude should not and will not be confused with parental apathy or disinterest.

I also accept that the Defendant has adopted a strategy to minimize conflict and facilitate the Plaintiff’s activities. [48] If anything, the evidence shows that the Plaintiff has exploited this attitude. For example, in the summer of 2012 the Plaintiff took the Children to Red Deer to visit her parents for two months. During this time, it would appear that the Plaintiff took no steps to initiate or maintain any contact between the Defendant and the Children. Instead, the Plaintiff was content to sit back, and take a position that if the Defendant wants to interact with the Children he can ask her.

If he does not, then he has no interest in contact. [49] An alarming indication of the Plaintiff’s attitude to the Defendant emerged in her testimony and well illustrates how the Defendant’s ‘hands off’ attitude was perhaps a not so unrealistic response to his spouse’s attitudes.

During re-examination by Plaintiff's counsel, the Plaintiff was asked the question, “Were you asked ever for a first right of refusal from him?” The Plaintiff replied “No.” The Plaintiff was then asked, “Would you agree to it if he asked you?” The Plaintiff first replied “no”, but then received what I would characterize as a leading question “You wouldn’t?” Now the Plaintiff changed her answer to “Yes.” [50] I then cautioned the Plaintiff that she was under oath and reminded her that she has sworn to tell the truth.

The Court then requested Plaintiff's counsel to ask the same question to the Plaintiff: Plaintiff's counsel: If the defendant requests a first right of refusal from you meaning if you -- if the children are in your care and you are unable to take care of them for longer than say a six hour stretch -- and he would like the first right of refusal to care for them, would you agree to that? Plaintiff: No. [51] This causes me concern. Is the Plaintiff willing to cooperate with the Defendant to provide him access to the Children?

That cooperation is an absolute necessity to maximize contact with the Children and their parents. Absent this cooperation on the part of the Plaintiff, any meaningful maximum contact between the Defendant and the Children, particularly if the Plaintiff is the primary custodian for the Children may be jeopardized. [52] I also do not accept the Plaintiff’s characterization of the Defendant as being driven mainly by his own business and financial interests. I observe that raising a family has costs.

The Defendant’s explanation of why he worked as hard as he did to build up his business is one I accept, and acknowledge as very reasonably and rationally linked to the objective of making a good life for his wife and Children. D. The Desirability of Maximizing Contact Between the Children and Both Parents [53] The basic needs of the Children for parental access were met while the Children lived with the Plaintiff in Cold Lake. That is not true of the situation at present.

The access regime under which the parties have operated since the date of separation is not consistent with the best interests of the Children. It has disrupted contact between the Children and both their parents, an objective stressed in Gordon . [54] The evidence is clear that since the separation, the Plaintiff has for the most part enjoyed the bulk of the access time with the Children. The Defendant is relegated to access every second weekend, holidays and vacation. This situation has been exacerbated by the relocation of the Plaintiff and the Children to Calgary.

When the Children were in Cold Lake, the Defendant could exercise his access with little effort or time on his part and with virtually no disruption to the Children. However, this all changed with the move to Calgary, a 13 hour round trip. The Defendant notes and I agree that this is a genuine challenge especially, on Alberta highways in winter. The Plaintiff’s decision to relocate with the Children to Calgary has made access by the Defendant extremely difficult if not, at times virtually impracticable. This is definitely not in the best interests of the Children. [55] I am mindful of the caution in Spencer v.

Spencer but I do not think it actually applies when I evaluate the two response scenarios identified by the Defendant in response to his Children being in Calgary. He realistically faces negligible contact and access to his Children, whom he says he loves. He says he will, if necessary, move to Calgary to accompany his Children. I see no reason to believe he is less than honest in that; the action proposed is clearly a reflection of his honest affection and wish to act in his Children’s best interests.

I also accept he is accurate in his assessment in the effect that will have on the family finances and on the parent with the greatest income potential. [56] The proposed residence in Calgary thus offers no advantages to the Children as far as parental and family access and paternal financial and parental support. What then are the benefits to the Children that flow from them being in Calgary with their mother the Plaintiff? E. Disruption

[57] The Children for their entire life had lived in the matrimonial home in Cold Lake. The eldest child, A.C.L.S. had just completed her kindergarten year at the local school and was involved in various extracurricular activities. The youngest child, N.A.S., is as yet too young to participate in such activities. Both Children, especially, A.C.L.S., were on the cusp of forming early childhood friendships with other children.

The matrimonial home is close to the paternal grandparents and there was frequent interaction between the Children and these grandparents, especially during special family events such as birthdays and holidays. [58] Although the Defendant's father is 79 years of age and his mother is 73 years of age, both grandparents have assisted in providing care for the Children both prior to and after separation when the Defendant was unable to do so during his access time.

Both grandparents have testified that they will continue to provide care for the Children in situations where the Children are not in school or at daycare, or if the Defendant for whatever reason may not be able to care for the Children. [59] The Defendant's mother testified that as a rule, virtually every week-end, the paternal grandparents would host the Plaintiff, Defendant, and the Children at their home for dinner. She testified that the distance between the matrimonial and grandparent’s home is about 10 minutes by foot.

This degree of support and contact with the Children's paternal grandparents is significant and a substantial benefit to these Children. [60] It goes without saying that the move by the Plaintiff with the Children to Calgary has caused a serious disruption for the Children. Contact with the paternal side of the family is disrupted. [61] The older child, A.C.L.S., had begun to form a peer social group in Cold Lake, though I do not stress that much given her age.

She no longer has access to a French immersion educational program, and to access that program in Calgary would involve a lengthy bus trip for the child to a school that does offer such a program. The Plaintiff acknowledges that it is inappropriate for a child of this age. The move to Calgary has to a certain extent interfered with one child’s education. [62] While the Plaintiff attempts to minimize this fact, the truth of the matter is that her move to Calgary has disrupted the Children’s interaction with their father.

Again, I think this is a substantial loss. [63] While I accept that from the time that the Children were born the Plaintiff may be considered as the primary caregiver that is not to negate that the Defendant too assisted in their care when possible. The Plaintiff was not a stay-at-home 24 hour a day mom. She testified that she worked part time at the Defendant’s dental clinic. Depending upon her work hours and other matters which she had to attend, the Children were required to attend daycare.

In this respect, one must place in perspective the fact that after the Children were born the parties took on individual roles, both working at the Defendant’s clinic. [64] That said, the Plaintiff providing the majority of the Children’s care. This allowed the Defendant to work full time and continued long hours to build his dental clinic and practice. As stated previously, the Defendant has acknowledged that perhaps he could have spent more time being involved with his Children.

In this respect, the Defendant has testified that should the Children be returned to Cold Lake, he will structure his work hours so meet their needs and be more involved in their care and day to day activities. In this regard, I found the Defendant to be a very credible witness. [65] It seems the Calgary arrangement is, itself, not settled. The Plaintiff currently rents a house from her cousin. The Plaintiff testified that, should this Court permit the relocation to Calgary, she may either remain in that home, buy it from her cousin, or acquire another house.

Although it is mere speculation, if the Plaintiff decides to acquire another house, that would mean another move for the Children, and perhaps another school and daycare provider. [66] The Plaintiff testified that in the short time that the Children have resided in Calgary they have been exposed to her numerous friends and certain family members, who have young children, and are forming bonds of friendship with these children. She further testified that the Children, especially A.C.L.S., is forming friendships with children at her school, and that N.A.S. is beginning to form friendships at the day home.

As well, the Children's maternal grandmother testified that her and her husband see the Children virtually every weekend, given the close proximity of their home in Red Deer and the Plaintiff's home in Calgary. The Children's maternal grandmother also testified that should this Court permit the relocation to Calgary, then it is her and her husband's intention to move to Calgary to be closer to their daughter and the Children.

Again, this is mere speculation. [67] The net result is that relocation to Calgary will involve substantial disruption to all facets of the Children’s lives but particularly to the relationship between the Children and their father. The disruption of the lives of the Children brought about by the move to Calgary is definitely a material and negative factor in testing whether a Calgary location is in the best interests of the Children. F.

Reasons for moving to Calgary [68] In essence, the Plaintiff offers three reasons why she and the Children should be in Calgary: 1. she can get work and advance her career, 2. she is lonely and isolated in Cold Lake, and 3. her Children benefit from better social contact with friends and family. [69] To cut to the heart of the matter, I do not think the Plaintiff is being forthright in her explanation. I think she has chosen to move as a strategy to remove the Defendant from her life. In doing so I conclude she has chosen, intentional or not, to operationally

prohibit the Defendant from having quality access with the Children. In doing so, she has shown a total disregard not only for the needs of the Defendant as the father of the Children, but more importantly, for the need of the Children to have their father actively involved in their life. As stated by Gill J., in Rozinsky v. Rozinksy at para 53 , such action is “... at best negligent and bordered on deliberate alienation”. [70] I will not comment on the second rationale as I do not think I have the evidence to critically evaluate the Plaintiff’s social life in Cold Lake vs. elsewhere.

I merely note it is strange she cannot find company in a city with a population of over 10,000 persons. [71] The Plaintiff testified that her decision to relocate with the Children to Calgary was born out of economic necessity. She says that when the couple split she only had limited funds and lost her job. She did not have spousal support, though she made many requests for that. She was destitute and desperate, and her husband would not help. [72] There are problems with this account. First, she lived in a no-cost accommodation.

Other than insurance, the Defendant has paid, with the exception of those insurance, all other housing costs: mortgage payments, taxes, and utilities. From December 2012 and onward the Defendant has made monthly child support payments of $5,000.00. On September 24, 2012 Justice Hughes ordered the Defendant pay the Plaintiff $50,000.

The Rooke Order mandated a further payment of $25,000.00. [73] I am also skeptical of the Plaintiffs explanation for her not being able to find employment in Cold Lake in either the dental field or in an IT-related position. [74] Although there may be evidence which would suggest that the Plaintiff did hunt for work I question the extent and sincerity of her efforts to obtain employment in Cold Lake.

While I accept the Plaintiff's evidence that she sought the advice of a previous employer and Canada Manpower as to employment opportunities in Cold Lake, I note that the Plaintiff initially resided in Calgary and there she worked for a company who was involved in the oil industry. I believe I may take judicial notice that at present one of the main economic activities in Cold Lake centers around the oil industry.

How then can it be that an individual such as the Plaintiff with certain training in the oil related industry is unable to secure any form of employment in the oil industry in a location where the main industry is oil and that industry would appear to be “booming”. [75] I believe that the Plaintiff has exaggerated her financial crisis and the need to relocate to Calgary for employment purposes. She is receiving substantial child support in a low-cost domestic context and has received a total of $75,000.00 from the Defendant pursuant to court orders.

Instead, in her new location she is paying $12,000.00 per year in rent, and other domestic costs. This is in exchange for a comparatively low-paying job. I also observe that the employment position in Calgary is not some unusual, specialized trade, or particularly valuable job opportunity. The Plaintiff’s new job is a rather mundane low-level office administrative position. In other words, it’s the kind of job she can find in many places. [76] I am also struck by the choice of Calgary as a destination. The Plaintiff says there is family there and it is close to Red Deer and the maternal grandparents.

Calgary also has a favourable employment environment. But why choose Calgary over Edmonton? Both are large, economically and culturally diverse centres. Both offer employment and diverse educational opportunities. Each city hosts a set of maternal relatives (in Edmonton her grandmother and two aunts) and are all but equidistant from Red Deer. If the maternal parents want to move to the same city as their grandchildren then Edmonton is as good an alternative, and perhaps even less expensive than Calgary.

The only distinction I can see is Calgary will by virtue of distance plausibly separate the Plaintiff from the Defendant. [77] Another indication to me that the Plaintiff’s motivation is suspect flows from the fact she acted pre-emptively and without court permission. I do not think the Plaintiff is so naïve nor poorly informed to know she has legal obligations and restrictions at present. [78] The May 23, 2013 order of Justice Lee addressed the trial of the Children’s location, as set by the Rooke Order. The trial was set for three days, commencing on September 9, 2013.

The Plaintiff therefore had an explicit timeline on when her request for court authority to move to Calgary would occur. I think this was within a reasonable time. [79] I have reviewed the transcript of the May 23 hearing (Exhibit #5) and highlight the following passages: Page 1, lines 36-38: Plaintiff’s counsel: I am also asking that the trial proceed on a peremptory basis on the dates ordered, or, in the alternative, an interim order permitting the plaintiff to move with the children to Calgary. Page 5, lines 2-5: Plaintiff’s counsel: Yes, exactly.

I mean, my - - I suggested an interim order to allow my client to move on an interim basis. She's commencing school in September in Calgary. That's why we’re so desperate to get this trial to go ahead. She can't find a job in Cold Lake where the parties were married. She's been applying - - Page 5, lines 17-27: Plaintiff’s counsel: Well, we could do an interim without prejudice basis. I mean, I’ve got a copy of my – the affidavit sworn by my client on April 13th indicating all the reasons why it’s in the best interests of the children for her to be permitted the move to Calgary.

She can’t make a living in Cold Lake. She moved up to Cold Lake to be with the defendant. He’s a dentist; she was a dental assistant. Since the separation, no one will hire her in Cold Lake. She’s ostracized. The children are young; it’s a perfect time for them to move. She’s got extended family in Calgary. Her parent – grandparent is in Calgary, she has got a free house to live, and she wants to start school so she can train to be in the medical profession and make a living and support herself. The defendant – Page 11, lines 15-17:

The Court: Okay. Well, it seems to me the less of the problematic approach for Mr. Tumbach is to simply order the trial proceed on the conflicted dates as opposed to letting the mother move with the children to Calgary. [80] Page 12, lines 1 & 2: The Court: All right. You can have your order to set the matter down for trial. That is all – [81] The court was alive to the Plaintiff’s claims of her allegedly unacceptable situation and wish to move with the Children to Calgary at the May 23, 2013 hearing. Lee J. chose to deny the Plaintiff’s application move to Calgary on an interim basis.

Instead, the Court ordered that issue be dealt with at the trial set by the Rooke Order. Now the Plaintiff literally chose to disobey the direction of the court. She unilaterally relocated to Calgary with the Children. This raises a real concern whether the Plaintiff will also fail to obey future orders.

I have grave concerns over this conduct, particularly as it seems these two parents will have their interaction and child access structured by the courts. [82] In the Plaintiff's affidavit of July 3, 2013 (Exhibit #6), the Plaintiff says that her reason to immediately relocate with the Children to Calgary was that she had been advised by her present employer that she would not get the job if she did not immediately start at the position.

The Plaintiff continues to say that although it was never her intention to take a position in Calgary without first knowing the outcome of the mobility issue trial, she was in a financially precarious position. Here she was offered an excellent position which she felt she just could not turn down. [83] I do not accept the Plaintiff's excuse. She had previously testified that there was a fairly strong job market in Calgary for dental assistants, provided you could provide a firm start date.

Clearly, after conclusion of the trial set to commence on September 9, 2013, she would have known whether or not she could relocate with the Children to Calgary. If so, then by her account she could apply for jobs opportunities in Calgary. I see no justifiable financial reason on the part of the Plaintiff for her decision to relocate with the Children to Calgary before this trial was conducted. I did not receive evidence to confirm the alleged financial stress.

I can only make a negative inference when that kind of documentary evidence is readily available. [84] In combination my various observations lead to an uncomfortable conclusion. While I cannot track the deterioration of this relationship in detail, it is apparent that as the spouses became more distant the Defendant allowed the Plaintiff to separate herself, allegedly to treat her medical conditions and visit her parents. At some point the Plaintiff decided to end the marriage and move away from the Defendant.

The Plaintiff assisted with the Defendant’s dental clinic bookkeeping and so was informed of the value of that business and the matrimonial home. A separation and divorce would provide sufficient funds to move away from Cold Lake and her ex- husband. So, in the summer of 2013 she seized the opportunity to move to Calgary with the Children, not for the benefit of the Children but for her sole benefit and personal advancement.

She now had the financial means to create a new life for herself, which centered around her family and friends, but took that step without consideration as to the adverse impact that the separation of the Children from the Defendant would have upon the Children and the Defendant. That was not in the best interests of the Children, but rather, herself. 7. Conclusion [85] I conclude it is in the Children’s best interests that they return to Cold Lake. That will be completed no later than October 2, 2013. I have arrived at this result due to a range of factors and factual conclusions: 1.

Permanent residence of the Plaintiff and the Children in Calgary would all but preclude meaningful parental access by the Defendant for so long as he lived in Cold Lake. That is not in the best interests of the Children. 2. The Defendant has built up a successful dental practice in Cold Lake which would provide for financial security for the Children. In contrast, given her varied and somewhat sporadic career choices, I have concerns with respect to the stability and sustainability of the Plaintiff’s employment. I accept that the Defendant will follow his Children to Calgary, if that move is ordered.

Financial support for the Children will be maximized if their father can continue to work in his current business. That is in the best interests of the Children. 3. Residence in Cold Lake will return the Children to the location and surrounding where they have spent almost their entire life. This is also a financially conservative option, which would assist the transition to separate households. Familiar surroundings and a known community and peers are in the best interests of the Children. 4.

The Children’s location in Cold Lake will maximise the contact with both parents and minimise the disruption to the Children. Although the bonds between the Children and their father, the Defendant may have in the past been somewhat compromised by the Defendant’s work ethic, I have every confidence that having the Children in Cold Lake will remedy this factor. 5. The Defendant's parents have a strong bond of affection with the Children as evidenced by the photographs contained in Exhibit “14“.

The Defendant's parents’ home is located in close proximity to the matrimonial home, and they are willing to continue to provide child care for the Children at times when the Children are not in daycare or school or the Parents are for whatever reason is unable to care for the Children. This resource and emotional support is in the best interests of the Children. 6. The Plaintiff's mother testified that when the parents lived in Cold Lake, her and her husband would make the trip from Red Deer to Cold Lake at least once a month. She said it was her intention to retire after this school year.

That being the case and given the fact that her husband is already retired, I see no reason why the Plaintiff's parents cannot continue their monthly visits and indeed may choose to increase such visits so that they may better spend time with the Children in Cold Lake. If the maternal grandparents are willing to move to Calgary then I can only presume they would also be willing to move to Edmonton, bringing all parts of this family just that much closer together. Again, improved access to supportive family members is in the best interests of the Children. 7.

I see no drawback to the Children in their medical care, extracurricular activities, or education while they are in Cold Lake. I had no evidence that the health conditions identified in the Children and Plaintiff require specialist treatment or support. I have every confidence

that the health care system in Cold Lake can address these concerns and if not, more advanced medical support is nearby in Edmonton. This factor is largely neutral. 8. I do not accept that the Plaintiff’s employment, educational, and social options are irrevocably linked to residence in Calgary. She may be able to make a life for herself in Cold Lake. If she does need to live in a large urban centre then I cannot see why she could not live in Edmonton and obtain all the same advantages as residence in Calgary, while also permitting better parental access, no matter which parent has custody of the Children. 9.

Lastly, I firmly believe that having the Children in Cold Lake will better accommodate a shared parenting regime, now and in the future. Like it or not, these two parents will have to interact for many years to come. I very well recognize and appreciate that separation and divorce is a stressful and difficult process, and that both the Plaintiff and Defendant may not be so enthusiastic about being around each other. To be blunt, this is a reality they must accept. These two persons will have to deal with one another in the foreseeable future. That is their joint obligation to their Children.

Cooperation will be necessary. It is better to build a new social structure sooner rather than later. If that social structure is one which provides the Children with all the family and functional support possible, then everyone – parents, children and extended family – wins. I find as fact that the best opportunity for that result is if the Children for now reside in Cold Lake. [86] The Plaintiff’s choice to move herself and the Children without court authority is genuinely unfortunate. The move to Calgary has caused disruption to the Children, and the move back to Cold Lake will do the same.

However, that is no basis for the Court to abdicate its supervisory role in this family law matter and in effect sanction the Plaintiff’s actions, as a fait accompli . [87] At the close of the third day of trial, I requested that counsel provide this court with a proposed parental regime which each would like to see in place, dependent upon whether the Children would be permitted by this Court to remain in Calgary or ordered returned to Cold Lake. [88] The Defendant advised that if the Court orders that the Children return to Cold Lake then both parties should be given joint custody of the Children and a shared parenting regime be ordered.

The Defendant further advised that if the Court orders that the Children are to remain in Calgary then, he will relocate to Calgary and in such event, he asks that both parties be given joint custody of the Children and a shared parenting regime be ordered. [89] The Plaintiff suggested to the Court that the Plaintiff’s preferred parental regime had been unchanged since the start of the trial: In terms of parenting, the plaintiff puts forward the following: She is applying for the parties to enjoy joint custody, that she be permitted to remain in Calgary with the children, that the children remain in her primary care and control with reasonable and generous access to the defendant.

We would like an order for the defendant’s access to be as follows: Now, as we understand if we’re successful he’s likely -- the defendant wants to move to Calgary. In the meantime we’ve proposed what the parenting should be while he remains in Cold Lake until he’s able to move. So this would be -- the defendant would have access with the two children of the marriage as follows while he continues to live in Cold Lake, and please note that there are two options for the defendant’s access with the children.

Option one is for the defendant to continue to have the children in his care on alternative weekends from Friday evening to Sunday evening. The parties would share the driving, the parties either meeting in Edmonton to exchange the children at the beginning and the end of the access visit or, alternatively, the defendant driving to Calgary on Friday to pick up the children, and the plaintiff would drive to Cold Lake on Sunday to pick them up and return them home.

Option two -- because we’re concerned about the amount of driving for these young kids -- would be to have the defendant to have the children in his care every third weekend from Thursday evening until Sunday evening. The parties would share the driving for the children as detailed above. This gives the defendant more time with the children; however, you’ll note that A.C.L.S., the daughter, is currently in grade 1. So this would require her missing a day or two of school.

So our suggestion would be -- because mom’s concerned about that -- that this would be reassessed when A.C.L.S. commences grade 2, as I understand the curriculum is going to be a little bit more intense, and it may not be in her best interests to miss school then. Our access proposal, in the event the defendant moves to Calgary, would be the defendant have the children in his care on alternative weekends from Thursday evening until Monday evening, and we’ll note that A.C.L.S.’s in school on Fridays just until noon.

So he would have the entire day with his son N.A.S., who’s currently in daycare, and he would have half the entire Friday with his daughter. We also propose one evening from 5 PM to 7:30 PM on the alternate weeks the children are not in the defendant’s care for the weekend. We propose the holiday parenting

schedule as follows: That for the summer each party would have the children in their care for three non-consecutive weeks during the summer. This is what occurred last summer as well. Christmas, each party would have the children in their care for one-half of the Christmas holidays. In odd years the plaintiff would have the children in her care over the first half of the Christmas holiday and the defendant the second half. In even number years the defendant would have the children in his care for the first half of the Christmas holiday, the plaintiff the second half.

December 25th shall always be included in the first half of the Christmas holiday. For the Easter long weekend each party would have the children in their care on alternative Easter long weekends with the defendant having the children in his care over the Easter long weekend in odd years, the plaintiff even years. Spring break: The party would have the children in their care on alternative spring breaks with the plaintiff having the children in her care over spring break in odd years and the defendant in even years. We propose the children shall have reasonable and generous telephone access with the defendant.

Regarding information exchange, the parties shall exchange information relating to the children with the other, and each party shall be entitled to obtain information with respect to the children from all healthcare providers, doctors, dentists, and schools. [90] Pursuant to s. 16(10) of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp), maximum contact between the child and each of its parents is to be facilitated if at all possible:

16(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 muchcontact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration thewillingness of the person for whom custody is sought to facilitate such contact. [91] In Young v. Young, (SCC), [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193 McLachlin J. reminds us that on mattersof access the ultimate test is the best interests of the child.

This includes the objective of providing maximum contact between the childand each parent, where that contact is if compatible with the best interests of the child. [92] I believe a shared parenting regime is in the Children’s best interests. That will maximise contact between the Children andeach of their parents. The parents will have joint custody of the Children. I therefore order: 1. The parties shall have joint custody of the Children with shared parenting based upon a one week on one week off rotation. 2.

The point of drop-off and pickup shall be at the respective parties’ residence, or such other location as the parties shall agree. Theparenting time shall begin on Friday from 5 p.m. until 5 p.m. on Sunday. In the event that the Sunday falls on a long weekend, then theSunday time shall be changed to 5 p.m. on Monday. 3. The parties are to alternate time with the Children over the Christmas and Easter holiday periods.

The Defendant shall have theChildren on Christmas Eve day and Christmas day in 2013 and alternating years thereafter and the Plaintiff shall have the Children onChristmas Eve day and Christmas day in 2014 and alternating years thereafter. The parent that has the Children in their care onChristmas Eve day and Christmas day shall provide the other parent with reasonable and generous access to the Children by way oftelephone and/or video conference at some time on Christmas Eve day or Christmas day each year, the specific time to be worked outbetween the parties.

Likewise with Easter, the Defendant shall have the Children on Easter Sunday 2013 and alternating years thereafterand the Plaintiff will have the Children on Easter Sunday 2014 and alternating years thereafter. 4. With respect to spring break, the parties shall share in the spring break time equally. The parties shall each have the Children forone continuous two-week period in each of the months of July or August for the purpose of the summer holiday period.

If, either parentwishes to take vacation time with the Children during any of these two week periods, that parent shall notify the other parent, in writing,by May 1st of that year, of the dates they seek for vacation. 5. If the Children are in the Plaintiff’s care on Father’s Day, the Children shall spend four hours with the Defendant on Father’sDay. If the Children are in the Defendant’s care on Mother's Day, the Children shall spend four hours with the Plaintiff on Mother’sDay. 6. Each parent shall have reasonable telephone access to the Children while they are in the other parent's care. 7.

Neither parent shall directly or indirectly, verbally or in writing, undermine the love and affection the Children have for the otherparent or members of that parent's family. Neither will interfere with reasonable communication by telephone or internet and nor interferewith the Children’s right to privacy during such communications. Neither parent will do or say anything to the Children that maydisrespect or undermine the other parent. 8.

The Defendant and the Plaintiff shall each have the right to directly communicate with the Children’s health caregivers,counsellors, teachers and extracurricular activity providers including acquiring their own copy of the Children’s school schedules andevents, trip itineraries, report cards, medical, dental and psychological records and extracurricular activities schedules. 9. Each parent is entitled to receive copies of all medical, educational, or any other documentation regarding the Children from anythird party involved with the Children. 10.

The Plaintiff and the Defendant will choose one medical practitioner for the Children, who will provide all medical care, exceptwhen that medical practitioner makes a referral to a specialist or a medical emergency arises. 11. The Plaintiff and the Defendant shall each provide the other with their respective telephone numbers both landline and cell phoneand with their respective addresses. 13.

Neither parent will relocate their residence or make a geographical move without first notifying the other parent in writing of theirintention to do so at least 60 days before the change and shall specify in the notice the date on which the change will be made and thenew place of residence. In the event that either parent chooses to change their residence to a place that is outside of Cold Lake and suchparent wishes to have their parenting time with the Children at such changed residence, then such parent will only be permitted to do soupon further order of this court. 14.

Both parties shall not remove the Children from this jurisdiction without first notifying the other party and providing them withthe destination where the Children will be taken and the duration that the Children will be out of the jurisdiction. Neither party shallremove the Children from the province of Alberta without the consent of the other party. 8. Costs [93] If the parties cannot agree on costs they may speak to them within 60 days from the date of this Judgment. Heard on September 9-11 and 16, 2013. Dated at the City of Edmonton, Alberta this 20th day of September, 2013.

Don J. Manderscheid J.C.Q.B.A. Appearances: Elizabeth L. Stewart Soby Boyden Lenz LLP for the Plaintiff Dale E. Tumbach Barrister & Solicitor for the Defendant