DM v JS, 2016 ABQB 268

Court of Queen ’ s Bench of Alberta Citation: DM v JS, 2016 ABQB 268 Date: 20160511 Docket: 4803 158441 Registry: Edmonton Between: DM Plaintiff/Applicant - and - JS Defendant/Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.M. Ross _______________________________________________________ [ 1 ] The Applicant father applies for a parenting order of his seven year old daughter. The application was initially brought on September 1, 2015 as a Chambers application based on affidavit evidence.

Justice Gill, who heard the application, concluded that there was a need for a hearing with oral evidence. He provided case management resulting in an Order dated February 12, 2016, which set out the following parameters for an oral hearing: • A restricted viva voce hearing was set for one day on March 23, 2016; • The issue to be dealt with is “to determine the substantial issue of parenting of the child, including the issue of the child’s primary residence, being principally in Ontario or principally Alberta”;

• Each party was directed to provide “an Affidavit focusing on the factors in Gordon v Goertz, (SCC), [1996] 2SCR 27 at paras 49-50, 134 DLR (4th) 321, including a brief history of the parenting arrangement, and each party’s proposal for aparenting plan for the child if residing principally in Ontario or principally in Alberta”; • The only witnesses at the hearing would be the parties, and the time for direct and cross-examination of each party was limited to60 minutes and 30 minutes respectively; • Time limits were set for the filing of affidavits, optional briefs and authorities. [2] Importantly, the Order provided that “the judicial determination of the issue(

s) for which oral evidence is permitted by thisOrder may, in the discretion of the Justice presiding at the hearing, result in a final order or judgement on that/those issues.” [3] The hearing proceeded on the scheduled date. Oral evidence was heard, and submissions made on behalf of the Applicantfather and the Respondent mother. As there was insufficient time for a reply submission, a written reply was provided on behalf of theApplicant Father on April 8, 2016.

On May 3, 2016, counsel for the Respondent Mother confirmed that he would not be providing awritten reply. [4] I have reviewed the Affidavits filed by each of the parties on this application, as well as historical Affidavits on the courtfile, which were referred to by both of the parties. I have also considered their written and oral submissions. I am satisfied that that theprocedure established by Justice Gill, and followed during and after the hearing, provided a full opportunity to each of the parties topresent their case regarding parenting and to know and respond to the other party’s case.

I am also satisfied that I have sufficientevidence to determine the issues set for hearing, the residence and parenting of their child, as a final order or judgement, subject tovariation only in the instance of a material change in circumstances. [5] While this is presented as a mobility application, and the parties have proceeded on the basis that the pertinent factors forconsideration as to whether the child’s move from Alberta to Ontario with her mother should be approved by the Court are those set outin Gordon v Goertz, there is an unusual aspect to this application: the child and her mother in fact moved to Ontario more than five yearsago, when the child was 21 months old.

She is now seven years old and attending first grade in Ontario. There were various reasons, bothjurisdictional and practical, that resulted in the parties neither agreeing to the move, nor seeking a final court order in respect of theprimary residence of the child, for several years. [6] The parties started cohabiting in late 2007, and the mother became pregnant shortly thereafter. Their daughter was born inJanuary 2009. The parties married in August 2010, and separated in November 2010. [7] The mother grew up in Ontario, and her family was still there. She had been working in Alberta when the parties met.

Sheceased working and became a stay-at-home mom when their child was born. [8] Both parties acknowledge that they were experiencing significant marital difficulty, when, on November 15, 2010, themother left the marital home near Grimshaw, Alberta and moved with their daughter to reside with the Respondent’s mother inHarrington, Ontario. The Applicant father had not agreed to the move. At first the mother said she would return in a couple of weeks, butshe did not do so.

The father was aware at all times of where they were, the mother kept in touch and offered to arrange Skype access oraccess in Ontario. [9] Court proceedings were commenced in Ontario by the mother, and in Alberta by the father. On April 21, 2011, both partiespersonally attended a 2 hour special application in Ontario Superior Court. Justice W.U.

Tausendfreund held that issues of custody andaccess should be dealt with in the divorce proceeding commenced by the father in Alberta; however, the mother would have interimcustody, with reasonable and generous access to the father, including telephone and Skype communication and a two week visit inAlberta, with the father providing supervised travel arrangements. [10] An Interim Order was obtained in Alberta in the within action on May 28, 2011, providing that the father would have accessin Alberta for one week of each month.

The parties parented under the terms of this order, with incidental variations, until the childstarted junior kindergarten in the fall of 2013. There were some issues regarding notice or the timing of visits, but the monthly Albertavisits occurred regularly until September 2013, the father consistently picked up his daughter in Ontario and brought her to his home inAlberta for one week each month. The mother facilitated access, including driving to the Toronto airport. The mother did not seek childsupport from the father, given the high costs associated with access.

When the child became anxious about air travel, the motherencouraged her to think about all the fun she would have with her father when she was in Alberta. This eventually evolved to the motherflying with the child to Alberta, to try to make the travel a more positive experience. [11] Access was varied in another Interim Order on January 10, 2014. The monthly visits in Alberta continued for the remainder ofthe junior kindergarten year and following summer. When the child commenced senior kindergarten in September 2014, there was achange to bi-monthly visits in Alberta.

The Order provided that the father could exercise access on alternate months in Ontario. He neverdid this; in his view it was too expensive and was not the experience that he wanted to share with his daughter. However, bi-monthlyvisits in Alberta continued. [12] The child is now in grade one. She does not like to miss school.

Both parents in this application take the position that accessvisits with the parent who does not have primary residential care should be structured around school holidays. [13] This application, five years after the mother and child relocated to Ontario, is the first application in which the father hassought primary parenting in Alberta. While he did not say this explicitly, I infer that there are essentially two reasons why he is bringingthe application now. One is that monthly or even bi-monthly visits have become impractical. He was clear that he does not want to seemonths pass by without seeing his daughter.

The second is that, with the child now in school, he is able to structure his work hours tocare for her. This would have been difficult or impossible when she was younger. The mother testified that the father worked long hourswhen they cohabited, and she, as the stay-at-home mom, was the primary caregiver to the child. The father testified that he was able tostructure his work

schedule around monthly visits. He would work long hours, up to 70 hours a week, when his daughter was in Ontario,

and spend all his time with her when she was in Alberta. While this required admirable dedication by the father, it would not have been a workable solution to full-time parenting of a toddler. The father has supportive family, who have formed good relationships with the child, and who he deposes would assist in caring for her, but they live in Dawson Creek, British Columbia, 200 km from Grimshaw.

They may be able to provide occasional care, but would not have been able to take on daily care of a very young child. [ 14 ] While I accept the parties’ joint submission that the Gordon v Goertz factors are applicable, the fact that the child has lived under her mother’s primary care in the new location for a lengthy period of time, and has developed connections to Ontario that are now stronger than her connections to Alberta, is certainly of significance in the application of those factors. [ 15 ] Gordon v Goertz at para 49 provides: 1.

The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. 2.

If the threshold test is met, the court must embark on a fresh inquiry about what is in the best interests of the child. [ 16 ] The threshold test has three parts ( Ibid at para 13): 1. a change in the condition, means needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; 2. which materially affects the child; and 3. which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. [ 17 ] The father submits that there was a change with the child moving to Ontario.

Had the question of primary parenting been brought before the court at the time, that would undoubtedly be true. Five years later, that is no longer the case. Any material change, at this time, would be caused by a return to Alberta. However, parenting of the child has never been determined on a final basis; there are only interim without prejudice orders in place, so the threshold requirement/issue does not apply.

Further, the Order setting down the hearing contemplated that the Court would embark on a fresh inquiry about what is in the best interests of the child, in relation to parenting, “including the issue of the child’s primary residence, being principally in Ontario or principally Alberta.” [ 18 ] The fresh inquiry into the best interests of the child should include (but not be limited to) consideration of the following factors:

a) the existing custody arrangement and relationship between the child and the custodial parent;

b) the existing access arrangement and the relationship between the child and the access parent;

c) the desirability of maximizing contact between the child and both parents;

d) the views of the child;

e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

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

g) disruption to the child consequent on the removal from family, schools, and the community he or she has come to know. [ 19 ] I will now turn to discuss each of the factors identified above.

a) The existing custody arrangement and relationship between the child and the custodial parent: [ 20 ] The father does not dispute that the existing custody arrangement has the mother as the custodial parent; however, he submits that she should not be regarded as the primary caregiver. It should not be assumed based on labels or the number of days that a child spends with a parent that one parent plays a more significant role in the child’s life than the other. [ 21 ] The father refers to the following cases in support of his position.

I have summarized the points relied on by the father, with my comments afterwards: ADM v SWL , 2015 ABQB 630 at para 119 : the Court observed that making distinctions based on the amount of time a child spends with each parent, poses the danger that the substance of the relationship between parent and child will be ignored.

The Court cited POT v BEM , 2010 ABCA 22 at para 189 , a case in which there was expert evidence that parents co-parenting in the same community had equally significant roles, despite differences in the time spent with each parent. [ 22 ] In the present case, there is no expert evidence, and the parents have not co-parented in the same community for the last five years. I agree that there is no presumption in favour of the custodial parent.

However, as noted in ADM v SWL at para 118 , it would be “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,” citing Milton v Letch , 2013 ABCA 248 . MO v CO , 2012 ABCA 297 at para 8 , 536 AR 266, confirmed the chambers’ judge’s ruling, noting that his “comment that the [mother’s] status as primary caregiver was “beside the point” conveyed his view that the actual parenting arrangements were more

important than labels.” [ 23 ] The Court of Appeal in MO v CO held that the chambers judge was clearly aware of the actual parenting arrangements, including the fact that the child spent more time with the mother, and reasonably concluded that both parents were actively involved in the child’s life, and this was not a case where one parent had limited or sporadic contact with the child. [ 24 ] The case before me is fundamentally different from both ADM v SWL and MO v CO . This is not a case where both parents have played a fundamentally equal role in the child’s life.

The mother has been the child’s primary caregiver since birth. The visits with her father have never amounted to shared parenting, and have necessarily become more sporadic as the child has started school. [ 25 ] Both parents agree that their daughter is thriving. She is doing well in school; she has lots of friends and close relationships with both her parents and their families. She has reached this happy state in circumstances in which it is clear that her mother has been her primary caregiver since birth. Her mother has taken care of her day-to-day needs, health care, education and extracurricular activities.

Her mother has also clearly supported the child’s relationship with her father. [ 26 ] The father does not take issue with the mother’s parenting, other than a general assertion that the mother puts her own interests ahead of her daughter’s interests. No examples of this were given. I infer that the father’s concern relates to the mother’s decision to move to Ontario. That is the subject of “Factor (e),” considered below. Apart from that potential issue, I disagree with the father’s assertion.

The mother’s evidence regarding her care for her daughter, alongside the decisions she has made and steps she has taken to ensure her daughter’s well-being, is compelling. The fact that the child is doing so well in all areas of her life, in particular in having strong and positive relationships with both parents and both sets of extended family, is a testament to the parenting skills of her primary caregiver.

b) The existing access arrangement and the relationship between the child and the access parent: [ 27 ] The relationship between the father and the child is, by all accounts, a strong one. She enjoys her time with him and extended family in Alberta. He sets aside all his time for her during her visits, and his parents and siblings, and nieces and nephews, come to visit. The father has a younger son who lives with his mother nearby. The father has a good relationship with his son and his son’s mother, and hopes that his daughter and son will have the opportunity to develop a relationship.

c) The desirability of maximizing contact between the child and both parents: [ 28 ] This factor does not favour either party. Whether the child lives in Alberta or Ontario, given the distance involved, access will be a challenge. [ 29 ] The father submits that the move to Ontario should not be approved because it dramatically affected his parenting time.

He points to cases where courts have held that the benefit to a child of moving close to extended family members of the moving party does not outweigh the negative effect of being separated from the non-moving party: Muth v Dewaal , 2015 ABQB 360 at para 28 ; Taylor v Taylor , 2014 ABQB 428 . [ 30 ] That might have been a consideration five years ago, but it is unrealistic at this time. The father and mother have established lives in Alberta and Ontario. They have jobs; they live near extended family; the mother lives with her fiancé.

The reality is that we are not dealing with a proposed change in location, but with two existing homes that are distant from one another. [ 31 ] There is a submission in the father’s written submission that, as he has spent less time with his daughter since the move, in order to maximize her contact with both parents and “even out the time she spends with both parents,” she needs to now spend more time with her father. In my opinion, the best interests of the child are served by maximizing contact on an ongoing basis as the child grows and matures.

They are not served by providing “make up” time for the last five years by changing custody. [ 32 ] The father also pointed to past difficulties regarding access, such as when the child started junior kindergarten. The suggestion is that he would be better at facilitating access. The access

schedule he proposes is a little more generous than that proposed by the mother. [ 33 ] Issues and disagreements regarding access arrangements are common, especially when the access is complicated by distance, and when parents find communication difficult, as is the case here. In my view, there would undoubtedly be disagreements if the child lived in Alberta and travelled to Ontario, just as there have been in the reverse situation.

The important point, though, is that the issues were resolved, if necessary by the court, and the mother followed through in ensuring that access visits took place, even taking the step of flying with her daughter to Alberta to mitigate the child’s anxiety about air travel.

d) The views of the child: [ 34 ] Given the age of the child, neither party suggests this factor should be considered.

e) The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child: [ 35 ] The father submits that the mother’s reasons for moving are relevant because one of the Respondent’s motivations to move was to separate the daughter from the father. She moved a long distance away, knowing that the father did not have the financial means

or ability to travel frequently to see the child. [ 36 ] Having heard the mother’s evidence, I simply do not accept the Applicant’s account of the mother’s reasons for moving. She described in compelling detail the difficulties in the parties’ relationship and how she felt alone, unsupported and overwhelmed as a new mother, caring for a young child, in a problematic relationship and without family or a support system nearby. She felt the negative relationship with the father meant she could not be a good mother because her child was not in a healthy environment.

She had no resources of her own, and no friends or family in Alberta to stay with. She went to live with her mother in Ontario because it was a safe place, [ 37 ] While the father did not agree with the move to Ontario, he did agree that the parties’ relationship was not a good one; it was “falling apart.” [ 38 ] When the parties appeared before Justice Tausendfreund in Ontario on April 28, 2011, he made the following handwritten endorsement on the record: Mother and child returned to Ontario from Alberta November 2010. It was a short and unhappy marriage. Mother was primary caregiver from date of birth of child.

Father was hard working and well meaning. Regard child – as parent – I am not inclined of view that mother’s return to Ontario and to her Oxford County roots was a “Self Help” remedy, but an emotional decision driven by the obvious marriage difficulties. Therefore, I do not find that mother “Wrongfully” removed child from Alberta.

I am satisfied that, at least on an interim basis, mother should remain as primary caregiver of child. [ 39 ] Having heard the parties, I completely agree with Justice Tausendfreund’s assessment. [ 40 ] That said, this is not one of the “exceptional cases” in which the custodial parent’s reason for moving is a relevant factor.

f) Disruption to the child of a change in custody; and

g) Disruption to the child consequent on removal from family, schools, and the community she has come to know: [ 41 ] The father submits that there would not be a significant disruption because the child is used to staying with him, and knows his family members. He also says that educational opportunities, extracurricular activities and medical care facilities in Alberta are just as good as in Ontario. [ 42 ] This submission ignores the very real change that the father proposes. The child is used to visiting her father in Alberta for a week, or sometimes two weeks, at a time.

But her home is in Ontario with her mother. This is where she has spent by far the greater portion of her life, and where, for the last few years, she has been settling into school and regular extracurricular activities. A change in custody would undoubtedly be a significant disruption to the child. She would be better placed to cope with the disruption because of the time she has spent in her father’s home, but there is simply no denying that it would be a significant disruption.

And the equivalence of educational and other services available in Alberta does not change the fact that the child would have to leave a school, activities and community that she is thriving in.

g) Conclusion regarding Gordon v Goertz factors: [ 43 ] While a very difficult case for the family, this is not a difficult case to decide based on the Gordon v Goertz factors. Those factors strongly support that, at least now, five years after the actual move, it is certainly in the child’s best interests for this Court to approve the move and her continued residence in Ontario under her mother’s primary care. The child is thriving and has strong relationships with both parents and their families.

While both relationships deserve to be fostered, it is clear to me that it would be dangerous to underestimate the extent of the bond between the child and her mother, who has been her primary caregiver since birth. Access [ 44 ] Both parties agree that there should be liberal and generous telephone and/or Skype access.

This would apply both to the father, while the child is with her mother, and to the mother, while the child is with her father. [ 45 ] It is in the child’s best interests to continue the pattern of extended access visits to Alberta so that the relationship between the child and her father and her father’s extended family may continue to thrive.

The timing of visits must, as both parties acknowledge, be varied as the child is now in school. [ 46 ] The father proposes access visits as follows: six weeks in the summer (July and August), Christmas holidays, Easter holiday, one additional week during the time period from September to December, and one additional week during the time period from January to June. [ 47 ] The mother proposes access as follows: two periods of two consecutive weeks in the summer, Thanksgiving commencing the day after the close of school to the following Saturday, Christmas from school break to December 26 on odd years, and from December 27 to January 7 on even years, March school break from the day after the close of school to the following Saturday.

During the hearing the mother indicated that the summer visit could also be either one period of four consecutive weeks, or one period of three weeks from the close of school to mid-July and an additional two week period in August. [ 48 ] In my view, the mother’s proposal is more realistic and reasonable, given the constraints of the school

schedule and given that it is important for the child to have holiday time with her mother and mother’s family, as well as with her father. There simply is not time

in the school

schedule to fit in an additional week’s visit in the fall and spring, in addition to the mid-fall, Christmas, and mid-spring visits proposed by the mother. As to summer, it is important that this time be shared with both families. I also believe that a six-week visit is an over-long separation from the primary caregiver for a seven year old. Dividing the visit into two three-week visits would severely restrict the periods of time that the child would have with her mother over the summer, to the point that summer travel with her mother or mother’s family might not be feasible.

In my view, the compromises discussed during the hearing provide the best balance. Summer visits should be either one period of four consecutive weeks, or one period of three weeks from the close of school to mid-July and an additional two week period in August, at the father’s election. The father should give two months’ notice of his election and the proposed dates of the summer visit or visits. [ 49 ] The mother gave evidence that air travel is difficult for the child, and more difficult when she has to travel overnight.

The mother proposes that air travel occur only during daytime hours and no later than 9:00 pm. The father takes no issue with this proposal, and I agree with it. [ 50 ] The mother proposes that the father be responsible for the child’s two-way airfare costs. The mother has been travelling with the child from Ontario to Alberta and proposes to continue to do this. She will cover her own airfare. The father takes no issue with these proposals, and again, I agree. [ 51 ] In addition to the Alberta visits, the father may, if he chooses, have parenting time with the child in Ontario during the school year.

He will be required to provide one-week’s written notice to the mother, and he will be responsible to ensure that the child attends school each day. Sole or Joint Custody [ 52 ] The parties have joint interim custody pursuant to the Order of Justice Manderscheid of January 10, 2014. However, joint decision-making is not realistic and has not, in fact, been occurring. The mother has, of course, made decisions about schooling and activities in Ontario. The father has not expressed any concern about this. The mother has also made health care decisions.

The father was concerned that he was not advised when the child had a minor surgical procedure. [ 53 ] Apart from the problems caused by distance, joint decision-making is also problematic because of significant communication difficulties between the parents. These were testified to by the mother, and conceded by the father.

They were also apparent in emails submitted by the mother. [ 54 ] I suggested that counsel might contact me post-hearing with a specific proposal as to a procedure by which the parties could jointly participate in some form of communication training, including monitored communications about the child for a period of time. No such proposal has been forthcoming. For this reason, as well as the practical problems posed by distance, I conclude that joint custody is not appropriate in this case, and the mother should have sole custody of the child.

The father is entitled to information about decisions made regarding the child’s education and health care, and the order should make specific provision for this. Communication [ 55 ] In the absence of a joint proposal regarding communication, I agree with the mother’s proposals that communication should take place through email and text and only discuss factual parenting issues, and that access arrangement should be communicated through MM or another agreed upon third party.

Costs [ 56 ] The mother has been successful on the application and is entitled to costs. [ 57 ] The parties may speak to me if they are unable to agree on the amount of costs. Heard on the 23 rd day of March, 2016. Dated at the City of Edmonton, Alberta this 11 th day of May, 2016.

J.M. Ross J.C.Q.B.A. Appearances: Chad C Bowie Snyder & Associates for the Plaintiff/Applicant Trent A Zimmerman T Zimmerman Law Prof Corp for the Defendant/Respondent