Mobbs v. Mobbs, 2013 ABQB 626

Court of Queen ’ s Bench of Alberta Citation: Mobbs v. Mobbs, 2013 ABQB 626 Date: 20131024 Docket: 4808 011830 Registry: Medicine Hat Between: Stacie Lynn Mobbs Applicant - and - Ryan Dennis Mobbs Respondent _ ________________________________________ ______________ Memorandum of Decision of the Honourable Mr. Justice Sterling Sanderman _________________________________________ ______________ [ 1 ] The Mobbs want to divorce. Both realize that their marriage has come to an end. In fact, since the fall of 2011, both have been involved in relationships with new partners.

Although they married in 2006, they lived as husband and wife for at least a decade. They are the parents of two children. Their daughter celebrated her 6 th birthday in April of 2013. Their son celebrated his 14 th birthday in August of this year. Mr. Mobbs is not the biological father of their son but has stood in loco parentis to him since he was 6 months old. Mr. Mobbs has strong feelings of affection for both children and resists Ms. Mobbs’ application to relocate with the children to Australia. [ 2 ] In February of 2013, Ms. Mobbs asked Mr.

Mobbs for his permission to relocate with the children to Australia so she could take up residence there with her new partner. He has accepted employment in Australia that could last up to four years. Ms. Mobbs asked for Mr. Mobbs’ permission as the parents have joint custody of the children pursuant to an order granted by Justice McIntyre in April of 2012. Pursuant to this order, Ms. Mobbs was charged with the responsibility of providing the day-to-day care for the children. This order recognized the child care arrangements that had been in existence since the birth of both children. [ 3 ] Because Mr.

Mobbs refused to consent to the move, Ms. Mobbs made an application to this court for permission to leave with the children. This matter was argued by the parties on September 19, 2013. Arrangements had been made to have counsel appointed

for the Mobbs’ son so that his position could be put before the court. In addition to this, the parties filed materials that set forth theirrespective positions. [4] Mr. Mobbs objects to the move on the basis that he does not want his children to be uprooted from the only home they haveknown. They have lived in the Medicine Hat/Brooks area since their births. He does not want them to be dislocated from their school,friends and relatives who reside in southern Alberta. He and his new partner argue that they can provide a loving and caring home for thechildren.

He points to the fact that he has changed his employment in order to facilitate being a more involved and committed parent. Hehas given up a wage position in order to start his own business that will provide the flexibility to fully care for his children. Mr. Mobbshas a particularly close relationship with his son due to their shared passion for the sport of motocross. Although his relationship with hisdaughter is not as well defined, he does not want the children to be separated and insists that the court refuse to grant Ms. Mobbspermission to move to Australia. [5] Ms.

Mobbs agrees that the children should not be separated. She wants them to live together. They have a close relationshipthat should not be disturbed. She argues that the move to Australia with her will benefit the children considerably. They will be better offfinancially in Australia as she will have support from her new partner who is working there. The support will be emotional and financial.She clearly questions Mr. Mobbs’ ability to properly parent their children.

She points to the fact that she has always been the primarycaregiver for both children since their respective births and since the separation of the parents. She points to many instances in the pastwhere Mr. Mobbs has failed to meet the standard of a responsible parent when he has been charged with the responsibility of caring forthem. She points to the very limited relationship that Mr. Mobbs enjoys with their daughter. She concedes that Mr. Mobbs truly loves hischildren, but that his love and devotion to them does not translate into an ability to properly care for them on a daily basis.

She arguesthat the opportunity for these children to experience living in a new country for a period of time would be beneficial to their developmentand should not be missed. Ms. Mobbs’ new partner has been in Australia for a number of months fulfilling his employment obligationsand she has waited patiently as this matter has made its way through the court system. [6] Ms. Mobbs acknowledges that it is imperative that the children maintain a positive relationship with their father and thatmaximum contact be maintained. She indicates that this can be accomplished in two ways.

Her new partner has children in Alberta. It ishis intention to travel back to this province from Australia 3 or 4 times a year to see them. During these visits, which would not bemomentary, Ms. Mobbs would bring the children back to Alberta to spend significant time with their father. When they were resident inAustralia, she would make them available for communications with their father through Skype, emails and telephone conversations. Sherecognizes the importance of maintaining regular contact between Mr. Mobbs and the children. She encourages Mr.

Mobbs to travel toAustralia where he could exercise access in their new home. [7] Their son is 14 years of age. He is of an age where his feelings should be considered in the decision-making process.Fourteen year old children do not have the maturity and insight to ultimately make decisions of this sort, but their feelings should beconsidered. The Mobbs’ son has made his feelings made known through counsel appointed for him. His feelings have been expressed ina letter sent by his counsel to the Court. It was a very informative and helpful letter. It is clear that Mr.

Bullock, counsel for the son,took his task seriously and covered all of the relevant areas in a fair and balanced fashion. [8] It is obvious that the son has thought about his mother’s proposed move and has carefully considered its effect upon him andhis sister. In his deliberations, it is obvious that he has demonstrated a maturity beyond his chronological age. He confirms that hiscontact with this father is mainly through their common love for motocross. He demonstrates a desire to have contact of a more variedsort.

He loves his father dearly but realizes that their relationship is not as full as it could and should be. [9] He has a much stronger relationship with this mother as she has been his primary caregiver since birth. He wants to continueto live with her regardless of where that may be. He exhibits a present desire to move with his mother to Australia. He anticipates theadventure that this move presents to him and he has no concern about leaving friends behind as he knows that the move will not bepermanent. [10] The feelings of the daughter were not canvassed due to her age and immaturity.

She has to remain with her mother as she hasno strong connection to her father. [11] It is clear that the threshold requirement of demonstrating a material change in the circumstances affecting the child has beenmet in this case. As Ms. Mobbs has discharged the burden of showing a material change in circumstances, both parents have theopportunity to demonstrate where the best interests of the children lie. This is the ultimate question that the court has to address. Inassessing the best interests of the children, a number of factors must be considered. As mandated in Gordon v.

Goertz, (SCC), [1996] 2 SCR 27 in assessing the best interests of the child, the court has to consider the existing custody arrangement andrelationship between the child and the custodial parent, the existing access arrangement and the relationship between the child and theaccess parent, the desirability of maximizing contact between the children and both parents, the views of the children, the custodial

parent’s reason for moving if it is relevant in that parent’s ability to meet the needs of the children, disruption to the children because of a change in custody and disruption to the children consequent on removal from family, schools and the community they have come to know. Not all factors are present in all cases. In some cases, 2 or 3 considerations dominate and drive the decision. This is one of those cases. [ 12 ] Since the birth of the children, Ms. Mobbs has always been the primary caregiver in relation to both children. Since the parties separated, she has been a single parent to both children.

It is clear that Mr. Mobbs never developed his ability to provide meaningful day- to-day care for the children. The evidence placed before the court leads to the conclusion that he is incapable of doing so. His subjective assessment of his abilities cannot be relied upon. The fact that he loves his children dearly is not a substitute for a deficient skill set in providing the day-to-day care for a 14 year old boy and a 6 year old girl. In fact, he has no meaningful relationship with the youngest child.

The question that the court has to answer is who can best parent the children and not play with and entertain them. A shared passion for a sporting endeavor is no substitute for responsible, meaningful and thoughtful parenting. [ 13 ] The Mobbs' son has expressed his feelings. His thoughtful analysis deserves careful consideration by the court. He wants to travel to Australia with his mother. [ 14 ] Ms. Mobbs’ reason for moving to Australia is relevant to her ability to meet the needs of the child. Her new partner has good employment in Australia.

He is capable of providing financial assistance that will allow Ms. Mobbs to be a full-time mother to the children. In Canada, she has had to rely upon some employment income and at times, uncertain child support from Mr. Mobbs. Her financial security would be greatly enhanced by the move and would allow her to devote her full energies to raising the children. [ 15 ] There is no doubt that the children would be leaving the only community in which they have resided. They do have relatives in southern Alberta, but most of them are relatives of Ms. Mobbs. Mr.

Mobbs has a sister residing in Red Deer, Alberta, but that person does not have a significant relationship with either of the children. Ms. Mobbs’ relatives support the move. They do not resist it. In this case, this type of dislocation is not significant. [ 16 ] Ms. Mobbs recognizes the need to allow the children to have as much contact as possible with their father. She concedes that this is a necessity.

She has offered a plan that addresses this need and it ameliorates the move to Australia in a significant fashion. [ 17 ] This is one of those rare occasions where the parenting skills of one parent are significantly better developed than the other. The parent having the greater level of skill has been providing the day-to-day care for both children. The move contemplated by the caregiving parent is not motivated by malice or ill will. It is done in order to provide a better situation for the children. Consequently, Ms. Mobbs will be allowed to move to Australia with the children. While there, Mr.

Mobbs will be able to contact the children through Skype, emails or telephone. Reasonable and generous contact should be maintained in this fashion. If he chooses to travel to Australia, he will provide Ms. Mobbs with his travel plans one month in advance and she will allow him to have reasonable and generous access to the children while he is there. When she returns to Alberta, with her new partner, she shall bring the children with her and will allow Mr.

Mobbs to have reasonable and generous access with them when the children are here. [ 18 ] As their son is approaching an age where his critical thought is developing, his continued residency in Australia should be reviewed in December of 2014. If he wishes to return to Canada at that time to reside with his father, he will be allowed to do so. [ 19 ] This marriage is ended. Both parties conceded that in open court when this matter was argued on September 19 th . Both want to get divorced. Both have entered new relationships. The divorce shall be severed from the corollary relief.

If the proper documentation is provided to me, I will sign a divorce judgment without dealing with any matrimonial property issues or corollary relief. [ 20 ] Ms. Mobbs will have costs of this application. Heard on the 19 th day of September, 2013. Dated at the City of Medicine Hat, Alberta this 24 th day of October, 2013 .

Sterling Sanderman J.C.Q.B.A. Appearances: Ali N.S. LaFontaine, Stringam Denecky LLP for the Applicant, Stacie Lynn Mobbs Genevieve Magnan , Magnan Law Office for the Respondent, Ryan Dennis Mobbs