Caine v Burris, 2016 ABQB 126

Court of Queen ’ s Bench of Alberta Citation: Caine v Burris, 2016 ABQB 126 Date: 20160302 Docket: 4813 004784 Registry: Ft. McMurray Between: Margaret Demetra Caine Applicant - and - Mark Lincoln Gerome Burris Respondent _______________________________________________________ Reasons for Oral Decision of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] Margaret Demetra Caine and Mark Lincoln Gerome Burris were married in Montreal in 2008 and divorced in 2013. While the evidence was somewhat unclear on this point, they had moved to Fort McMurray in or about 2010.

There are two children of the relationship, [A-M], who’s 7, and [M-M], who’s 5. Mark has court-ordered access to the children. [ 2 ] Margaret lost her job in Fort McMurray in early February 2016 but she has obtained a position with the Fraser Williams Mental Health Residence in Montreal starting March 8, 2016. She has secured accommodations in Montreal that she can afford. She will have sufficient income to support herself and her children. Margaret’s parents live in Montreal and are available to provide support. [ 3 ] Margaret brought a mobility application in Family Chambers.

Her application was primarily for an order permitting her to relocate with the children from Fort McMurray to Montreal. [ 4 ] Mark opposed the application but more specifically argued that the application must be adjourned. In para 3 of his affidavit, he stated that “I swear this affidavit on an emergency basis due to the fact that I was served with minimal notice and when I was working.

I am reserving the right to swear a fuller and more complete affidavit when I am afforded more time.” Mark’s position was that a decision respecting the mobility application could not fairly be made in Chambers based on the record. He wishes to question Margaret on her affidavit. Whether or not viva voce evidence is required, the matter should be put over to at least a Special Chambers application. [ 5 ] Two issues arise:

First, may the mobility application be decided in Chambers on the basis of the affidavits filed? Second, may an interim without prejudice mobility order be granted in Chambers, pending proceedings to follow and a further court order? 1.

May the mobility application be decided in Chambers on the basis of the affidavits filed? [ 6 ] Mobility applications have been decided following trial or with at least the benefit of viva voce evidence: e.g., MacPhail v Karasek , 2006 ABCA 238 ; Milton v Letch , 2013 ABCA 248 ; Grunow v Grunow , 2014 ABQB 527 ; Thie v Thie , 2014 ABQB 286 , affd 2014 ABCA 249 . [ 7 ] Nevertheless, mobility applications do not always require viva voce evidence.

Mobility applications have been decided in Special Chambers Applications on the basis of affidavit evidence: Heikel v Heikel , 2007 ABQB 378 , Rawlins J at paras 27 and 28; DLW v HAD , 2015 ABCA 203 . [ 8 ] The question is whether a mobility application may be decided yet farther from the procedural rigours of trial at the stage of a Chambers application, without the benefit of questioning, when – as in this case – the respondent’s evidence is that he has not had sufficient time to prepare a proper response.

In this instance the parties were accorded ample time for argument and had the time for argument that they would have had in a Special Chambers Application, but that does not address the problem of the underlying weaknesses of the record, of the evidential foundation for the application. [ 9 ] A decision in Chambers, no less than a Special Chambers decision or a trial decision, must be “fair and just.” A Chambers decision can be fair and just only if, as Justice Karakatsanis stated in Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 S.C.R. 87 at para 49 , “the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.” I note that expeditiousness and inexpensiveness are only factors to be considered and do not define what is “fair and just.” [ 10 ] In my opinion, a mobility application should not normally be decided in Family Chambers through granting an order that could only be varied on proof of a material change in circumstances. [ 11 ] In this case, given the representations that a proper response was not possible because of the timing of service of the application, the expressed need to question Margaret on her affidavit, and – as will be referred to below – the evidential gaps in the record, I will not decide the mobility issue, in the sense of granting an order that could only be varied on proof of a material change in circumstances.

I do take into account that this application was not wholly a surprise. Mark’s affidavit refers to a mobility application by Margaret in 2011. There were some submissions about precisely when Mark learned about the substance of this application. That being said, he did have work commitments, he didn’t know exactly what would be alleged until he saw Margaret’s affidavit, and he was forced to respond quickly.

I accept that he could not, in the circumstances, have provided the evidence that he would have had he more time. [ 12 ] A Special Chambers Application should be booked, to follow questioning on affidavit. [ 13 ] However, this finding does not determine whether I should adjourn Margaret’s application without making any order whatsoever. I must address the second issue. 2.

May an interim without prejudice mobility order be granted in Chambers, pending proceedings to follow and a further court order? [ 14 ] Three main reasons were advanced against granting an “interim interim” or an “interim without prejudice” mobility order in Chambers. First, if granting a mobility order would not be fair because of the weaknesses of the record and the inability of the respondent to properly respond, granting a without prejudice order would also be unfair. Second, a without prejudice mobility order, as much as an unqualified mobility order, has a decisive character. The children are moved.

The change is one that the access parent cannot recover from; his or her position and relationship with the children is undermined. One might say that the access parent suffers, from a litigation standpoint, a form of irreparable harm. Third, if the without prejudice mobility order does not stand, it puts the children at risk of being pulled back to the access parent.

The children face the prospect of being “yo-yo’d” between the parents, which cannot be consistent with their need for stability and their best interests. [ 15 ] In my view, a without prejudice mobility order would be appropriate only if these concerns can be addressed. Three tests should be considered to determine whether a without prejudice mobility order would be appropriate – (1) whether the due process interests of the respondent will be protected; (2) the strength of the applicant’s case; and (3) whether and to what degree the relationship of the access parent to the children may be preserved.

(1) Will Mark’s due process interests be protected? [ 16 ] In my view, the due process interests of Mark will be protected. Mark will be able to question Margaret on her affidavit. If need be, he could apply to substitute a new affidavit for his current affidavit. If it is determined that viva voce evidence is necessary to resolve the issues, an application can be made for the requisite order. Viva voce evidence may be heard at a Special Chambers

Application. The Justice presiding at the Special Chambers Application will be able to decide based on the suitably amplified record. [17] Moreover, my understanding is that a Special Chambers Application date is available in April. If counsel book this date nowand cooperate respecting the steps to follow, the requisite procedural steps could be completed in time for the application. That is to say,a formalized resolution of the mobility issues is available relatively quickly.

(2) What is the strength of Margaret’s case? [18] There are three basic considerations. [19] First, Margaret has a right to move. She is under no obligation to remain in Fort McMurray, and certainly under no obligationto take steps short of hardship to remain in Fort McMurray. According to the Court of Appeal in MacPhail v Karasek at paras 44 and45, [44] ….. Canadians are mobile and the courts are not the arbiters of the reasonableness of every decision a custodial parent makes.Custodial parents cannot be held hostage to the place the access parent lives. Certainly access parents are not.

Moreover, it is not anoption to conclude that a child’s best interests are best served by both parties living in the same place any more than it is an option toconsider that it is in a child’s best interest that their parents remain together. [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. See also Sangha v Sandhar, 2013 ABCA 259 at para 2. [20] Second, and this is an important qualification of the first consideration, Margaret’s right to move does not entail that – withoutmore – she has the right to take the children with her. The mobility question is not a question about the parent’s right to move. The parentis entitled to move.

The mobility question is about the best interests of the child and whether the disruption of existing accessarrangements is in the best interests of the child. [21] Subsection 16(8) of the Divorce Act provides that In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage asdetermined by reference to the condition, means, needs and other circumstances of the child.

This principle is echoed by Justice McLachlin, as she then was, in Gordon v Goertz, (SCC), [1996] 2 S.C.R. 27, thefoundational mobility authority, at para 50: “… The ultimate question in every case is this: what is in the best interests of the child in allthe circumstances, old as well as new?” See also Cavanaugh v Balkaron, 2008 ABCA 423 at para 12. [22] Third, for a without prejudice mobility order to be justified, it must be possible to find, on the record, given the proceduralcontext, and given the measures proposed to mitigate adverse impacts on the respondent as a result of the order (which will beconsidered in the next part of these reasons), that moving the children would be in their best interests. [23] In Gordon v Goertz, Justice McLachlin summarized the law governing mobility applications at para 49: 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 circumstancesof the 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 theneeds 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. [ 24 ] In this case, the proposed move would be a material change in circumstances permitting consideration of the variation of the existing orders granting Mark access. This point was not contested in argument: see Gordon v Goertz at paras 12 – 16 . I will consider the application of the factors listed at number 7 in para 49 of Gordon v Goertz . re: (

d) the views of the children [ 25 ] There was no evidence of the views of the children. They are young, ages 5 and 7, and keeping them out of the litigation is in their best interests. re: (

e) the custodial parent’s (Margaret’

s) reason for moving [ 26 ] There were some submissions about Margaret’s reasons for moving. Concern was expressed that she had the money and had the ties to stay in Fort McMurray, that she had failed to provide any evidence of a job search here, that she had a severance package in hand from her former employer, and that she was taking the opportunity presented by the package and a new job in Montreal to leave and be with her fiancé. None of that was relevant. There was no evidence that Margaret’s decision to leave had anything to do with her parenting, with her ability to meet the needs of the children.

As indicated, she is entitled to leave Fort McMurray. Justice McLachlin elaborated on this factor in Gordon v Goertz at para 48 : [48] … 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. and at para 23: [23] Under the Divorce Act , the custodial parent's conduct can be considered only if relevant to his or her ability to act as parent of the child. Usually, the reasons or motives for moving will not be relevant to the custodial parent's parenting ability.

Occasionally, however, the motive may reflect adversely on the parent's perception of the needs of the child or the parent’s judgment about how they may best be fulfilled. For example, the decision of a custodial parent to move solely to thwart salutary contact between the child and access parent might be argued to show a lack of appreciation for the child's best interests …. However, absent a connection to parenting ability, the custodial parent's reason for moving should not enter into the inquiry. See also RJF v CMF , 2014 ABCA 165 at para 59 . re: (

c) the desirability of maximizing contact between the children and both parents [ 27 ] Justice McLachlin referred to “the desirability of maximizing contact between the child and both parents” [emphasis added]. This factor reflects the direction in s. 16(10) of the Divorce Act : 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 …. This principle is mandatory, but not absolute.

The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact: Gordon v Goertz at para 24 ; ADM v SWL , 2015 ABQB 630 , Jones J at para 134 – 135. re: (

b) the existing access arrangement and relationship between the children and the access parent (Mark) [ 28 ] On the evidence, Mark does not currently have “shared” custody for the purposes of the Child Support Guidelines. Nonetheless, he has parenting time with the children about 30% of the time. That is significant time with the children. [ 29 ] The affidavits did conflict on the issue of Mark’s exercise of his parenting time. There is no basis for resolving the conflicts given the affidavits alone.

I will proceed on the assumption, which is fair to Mark for the purposes of this application, that he is indeed an excellent parent who loves and has a very strong relationship with his children. [ 30 ] Were there evidence that Mark did not have a strong and deep relationship with his children, the mobility decision would be easier; but even in the face of strong and deep relationships by an access parent with his children, mobility decisions are made. Two former spouses may be excellent parents and may deeply love their children, but one may move and the children may move too.

This is a regrettable but unavoidable consequence of marriage breakdown.

re: (

a) the existing custody arrangement and the relationship between the children and the custodial parent (Margaret); and re: (

f) disruption to the children of a change in custody; [ 31 ] There is no presumption in favour of the status quo , no presumption in favour of the custodial parent: Gordon v Goertz at para 48 and Botticelli v Botticelli , 2009 ABQB 556 , Veit J at para 17. [ 32 ] Nonetheless, in Milton v Letch at paras 14 and 15 , the Court of Appeal held that it is an error in principle to fail to address the extent to which a child may have bonded with the parent in whose “primary care” the child has been since birth. In DLW v.

HAD , Justice Topolniski’s Special Chambers Application reasons were quoted and her findings were upheld. She is quoted at para 3: “A key consideration in these cases is the importance of the child remaining with a parent to whose custody the child has become accustomed and weighing that against continuance of full contact with the child’s effective access parent, its extended family and its community ….” She added: “And do think about the bond between parent and child, and the effects separation might have upon the child if primary care was awarded to the parent who had not previously been the primary caregiver.

It is clear from the case authorities that where one parent has assumed a greater role in caring for the child, Courts must consider the impact on the child of making any change to the parenting arrangement….” and at para 6: “The existing custody and access arrangement, the ability to maximize contact and the status quo, the mother has been the child’s primary caregiver since birth. There is no question of that. She is the constant….

I do not think it is realistic to imagine that Albert could be separated from his mother were she to move to Nova Scotia without some significant impact emotionally on him and that dovetails onto the next factor. In my view, both of these factors weigh in favour of the mother.” Margaret has been the primary caregiver for the children since birth. The children have been primarily resident with her. Mark has been an access parent, not the primary care-giver. This has two implications.

First, as the Court of Appeal has directed, this relationship, the degree of bonding between Margaret and the children, must be given significant weight. [ 33 ] Second, what must also be considered is the disruption were Margaret to move and leave the children behind. It would be an error in principle not to consider the children’s bond with their mother and the effect that separation might have upon the children if Margaret became simply an access parent: MacPhail v Karasek at paras 32-33 ; RJF v.

CMF at para 27; Milton v Letch at paras 14 and 15 . [ 34 ] I find, echoing Justice Gill in the Thie case, that “[a]t this stage of their lives it would be a major disruption for the children to stop living with the mother or to be geographically separated from the mother:” Thie v Thie at para 51; see also para 47 (QB). [ 35 ] Moreover, Mark’s proposal for becoming the primary resident parent would not mitigate the disruption. The fact is that he works long hours. Reference was made to his “6 on, 6 off” schedule. On the evidence, he would not be home every night.

He would not be able to take the children to school or pick them up every day. He would not be able to take them to dance classes. He would have to hire persons to assist him. There was no evidence that Mark has family in Fort McMurray who could help. [ 36 ] I am aware of Justice Veit’s comment in Botticelli v Botticelli at para 37 : His son’s best interests do not require that his father personally cooks his every dinner and gives him his every bath. Just as the mother has hired a nanny, so the father is able to obtain assistance in parenting his son.

There is no obligation on Mark to be constantly available for the children. Margaret plans to go to school herself. She plans to work. She plans to be assisted in Montreal by family. Mark faces a double problem, though. First, his arrangements would not compensate for the disruption caused by the children losing their primary relationship with their mother. Second, his work entails more time away from home than office employment, which is what Margaret has secured. re: (

g) disruption to the children consequent on removal from family, schools, and the community they have come to know [ 37 ] Mark is right that the children have lived most of their lives – the youngest all of her life – in Fort McMurray. [A-M] will have friends here. The children will have friends at dance. [ 38 ] Furthermore, the move would come about three-quarters through the school year. This would be disruptive to the children’s education.

[ 39 ] There was very little discussion of the impact of a late switch in schools on the children in Margaret’s affidavit. Fortunately, the children have been in French schools in Fort McMurray. In Margaret’s opinion, “they will be able to adjust to the culture in Montreal.” [ 40 ] I do take into account that if a move were to occur soon, if the school year ends at about the end of June, the children would have about four months of school to go.

The move would be less disruptive to [M-M’s] kindergarten studies; and the children are young enough that a parent can do significant and useful supplemental work with them at home. [ 41 ] This change, though, would not be easy for the children. This factor counts most strongly against an interim move. re: potential further disruption for the children [ 42 ] Another factor counting against an interim mobility order is the prospect that the children will be required following the Special Chambers Application to return to Fort McMurray.

Moving, then moving back, would be disruptive. [ 43 ] One factor mitigating this risk is that the Special Chambers Application will be held in April. If the children were called back to Fort McMurray, this would probably await the end of June when school was done. They would have been away four months. That is not an overly long time; they would likely not have developed significant roots and attachments in that time that would cause them pain to leave. [ 44 ] Another factor mitigating the risk is the degree of likelihood of reversal of the interim without prejudice mobility decision.

The weaker Margaret’s case, the stronger the likelihood of later reversal. I would not presume to direct or predict the decision of a Justice on the amplified record at the Special Chambers Application. I can only make an assessment based on the evidence I have before me. I will defer that assessment to my conclusion respecting this test for an interim without prejudice mobility order. re: further benefits for the children [ 45 ] There are some additional and potentially offsetting benefits that the move to Montreal could bring. Margaret has a job in hand with the Fraser Williams Mental Health Residence.

If she can enhance her economic position, she thereby enhances the family’s economic position. She has obtained a 3 bedroom residence in Montreal for herself and the children which she can afford. [ 46 ] Importantly, she will be moving back to family. There is no evidence that Margaret’s family currently has relationships with the children, but they could have a relationship. Margaret deposed that My family including my parents, aging grandmother, brother, his wife and 2 children, as well as numerous cousins, uncles, aunts, etc. reside in Montreal and are my support system (affidavit at para 12).

Further, her fiancé and his family are also from Montreal, and his parents’ home is a few blocks from her new home (affidavit at para 12). Margaret’s parents “are willing to assist with caring for the children after school when I am at work. The school bus can deliver the children to the curb in front of my parent’s home” (affidavit at para 18). The children will not be required to attend day care. [ 47 ] In Montreal, she will be able to promote her children’s religious upbringing.

Margaret deposed that “I have not been able to fully practice my religion or share it with my children in Fort McMurray as there is no Greek Orthodox Church here. In Montreal I can more fully practice and better teach that part of my life and the children’s heritage to them” (affidavit at para 12). [ 48 ] The children will also be able to practice Greek, which they speak, with Margaret’s family (affidavit at para 19). conclusion respecting the children’s best interests [ 49 ] In my opinion, on the record as it is, Margaret has a strong case. The record is not perfect.

There are areas that could be amplified by further evidence. But there is no indication that there is other evidence not yet filed that would significantly undermine Margaret’s case. In my opinion, on the record as it is, there is a strong inference that the move to Montreal with Margaret would be in the children’s best interests, and remaining in Fort McMurray, with Margaret as the access parent, would not be in the children’s best interests.

(3) How may Mark’s relationship with the children be preserved? [ 50 ] Another way to put this question is, how may the disruption to Mark’s relationship with the children be mitigated? [ 51 ] What is contemplated is an interim without prejudice order. The order would only be in effect until replaced by a further court order. The objective would be to promote Mark’s ability to continue to have time with the children given the significant change in the distance between Mark and the children. [ 52 ] The following measures would serve until further court order: (

a) The parties shall continue to have joint custody of the children.

(

b) So long as the children reside in Fort McMurray with Margaret, Mark shall have access to the children in accordance with the Order granted by Justice Hughes on February 26, 2014. (I assume that the parties will settle the terms of this Order.) (

c) Following Margaret’s relocation to Montreal, Mark shall be entitled to reasonable and generous access with the children. Mark shall provide the Mother with notice of his intention to exercise access at least two weeks prior to the date of the intended access at an e- mail address specified by Margaret. (Counsel did not address the access days that would make sense in an interim order, but this could be set at a minimum and maximum number, on the expectation that Mark would visit once per month.) (

d) Mark shall pay s. 3 child support based on his line 150 income, but if Mark exercises physical access to the children in any month by travelling to Montreal, then he may, in the month following the access visit, reduce his child support payment for that month by $1,000. (

e) Mark shall pay his proportionate share of s. 7 expenses. (

f) Mark shall have reasonable telephone, text, and social media (including Skype, FaceTime or similar communication platform) access to the children, and Margaret shall facilitate this access. [ 53 ] The distance between Mark and the children cannot be reduced. Visiting the children will cause expense. What can be done is to reduce that expense, as indicated. [ 54 ] The terms I have set out do not have the detail respecting holidays found in Margaret’s proposal attached to her application.

That detail, for times falling after the Special Chambers Application, can be dealt with in the Special Chambers Application. [ 55 ] I note that the sort of access arrangement contemplated was employed by Justice Gill in Thie , which was upheld by the Court of Appeal. See Thie v Thie at para 53 (QB). [ 56 ] Finally, (

g) pending further order of this Court, Margaret shall not commence any application or proceeding relating to the children of the marriage in Quebec or any other province or jurisdiction. CONCLUSION [ 57 ] In my opinion, an interim without prejudice mobility order may be granted in Chambers, pending proceedings to follow and a further court order, and an interim without prejudice mobility order should be granted to Margaret.

The due process interests of Mark are protected by the availability of a Special Chambers Application and procedures for further disclosure of evidence, and by the without prejudice nature of the order. The order would be in the best interests of the children.

The disruption to Mark’s relationship with his children can be mitigated, if only in part, through allowing him to set-off an amount for travel costs as against child support. [ 58 ] I therefore make an interim without prejudice order granting Margaret permission to move with the children to Montreal on the terms set out in paras 52 and 56 of these reasons. [ 59 ] If counsel cannot work out the maximum and minimum number of access days referred to in para 52(c), they may make written submissions to me within 30 days from today. I will resolve the issue in writing.

If counsel require further clarification of the terms of the interim without prejudice order (which would contain the usual corollary relief terms respecting recalculation, MEP, and provision of copies of income tax information), they may contact me within 30 days so that terms may be settled. [ 60 ] The question of costs is deferred to the Special Chambers Application. [ 61 ] I am painfully aware that this is not a perfect solution. It is an attempt to put in place a least-imperfect solution for a consequence of the breakdown of the marriage. Heard on the 23 rd day of February, 2016.

Delivered Orally in the City of Fort McMurray on the 24 th day of February Dated at the City of Edmonton, Alberta this 2 nd day of March, 2016.

W.N. Renke J.C.Q.B.A. Appearances: Mark R. Baril Stringham LLP for the Applicant Terrence A. Cooper, QC Cooper & Company for the Respondent