Hiron v McRae, 2016 ABQB 285

Court of Queen ’ s Bench of Alberta Citation: Hiron v McRae, 2016 ABQB 285 Date: 20160518 Docket: FL03 40601 Registry: Edmonton Between: Billie-Joe Hiron Applicant - and - Mary D. McRae Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Ms. McRae applies to vary the existing shared parenting order of November 12, 2013, by relocating the 5 and 7 year old children of the relationship to St.

Brieux, Saskatchewan, which is a 5 ½ hour drive from Edmonton, giving her sole decision-making authority for the children, and by setting the father’s parenting time on long week-ends, for the month of July, and on alternate Christmas holidays rather than the shared parenting regime that was recognized in the 2013 order. [ 2 ] In September 2015, without the father’s consent, the mother removed the children to Saskatchewan; shortly after, an order of this court required the mother to return the children to Edmonton. Ms.

McRae launched this application on March 10, 2016; the earliest day on which a special chambers hearing could be held was May 5, 2016. [ 3 ] The mother asserts that she was the primary parent of the children before she removed them to Saskatchewan and that, when

her subsidy for daycare for the children was delayed, she had to quit her job.

She alleges that because she was receiving no financialsupport from the father, she moved to Saskatchewan where she has an aunt and uncle, the offer of free room and board with thoserelatives, and, eventually, a job as a part-time bartender in a fast-food restaurant. [4] The mother’s application is denied: in the circumstances both old and new, it is in the best interests of these children toremain in Edmonton. [5] The mother has established that there has been a material change of circumstance since the last court order: she has movedfrom Alberta to Saskatchewan. [6] The existing parenting regime prior to the removal of the children to Saskatchewan was, essentially one of shared parenting,rather than one in which Ms.

McRae was the custodial or primary parent; therefore, this is not a situation in which a custodial parent’sviews are entitled to great respect. Legislative policy establishes the desirability of maintaining maximum contact between the childrenand each of their parents; that policy is not served by allowing the removal of the children from Alberta. These children are too young toexpress a view on parenting arrangements. The mother’s reason for leaving Alberta is not relevant; she has not established that her reasonfor leaving was tied to her ability to meet the needs of her children.

Based on the independent assessment by their teachers, the childrendo not appear to have been negatively affected by the loss of daily contact with their mother. The children’s lives would be disrupted ifthey were to be removed to Saskatchewan: they would lose continuity with their school friends and teachers and with their extendedcommunity. Cases and authority cited [7] By the applicant/mother: Gordon v Goertz (SCC), [1996] 2 SCR 27; MacPhail v Karasek 2008 ABCA238; F.(R.J. v F.(C.M.) 2014 ABCA 165. [8] By the respondent/father: Gray v Metcalf, 2011 ABQB 773; Ruel v Ruel, 2006 ABCA 170; W.D.G.

V D.L.G., 2009ABQB 340; C.J.T. v G.A.T., 2012 ABQB 193; Gordon v Goertz, (SCC), [1996] 2 SCR 27. 1. Background [9] The parties lived together in a common-law relationship between 2007 and August 31, 2013; they have two children. InNovember 2013, on the application of the father, this court ordered “that the parties shall continue the shared parenting regime of twoweeks with the [father] and two weeks with the [mother]”(emphasis added). Based on both parents’ guideline incomes, the father was topay the mother $529 per month in child support, which was to be paid to the Director of Maintenance Enforcement.

The mother wasunrepresented on that application. [10] The mother asserts that, at some time after the shared parenting order, the parents mutually decided not to follow the order asto parenting time, or as to the amount of child support the father was to pay, or as to the direction that child support was to be paid to theDirector of Maintenance Enforcement. Parenting time was to be exercised by the father when his shift work allowed, and he was to paythe mother $900.00 per month in child support.

The mother asserts that the father only paid support sporadically. [11] In late 2014, the parties resumed living together; in April 2015, they separated for the last time. [12] In April 2015, the father left the matrimonial home where the mother and the two children remained. The father was workingin Bonneville. During July and August, 2015, the parties resumed the two week on/two week off parenting regime. The mother assertsthat, after April 2015, the father paid no child support.

The father has provided evidence of payments to the mother of various amountstotalling approximately $4,000.00 in May, June, July and September of 2015. [13] In September 2015, without the father’s consent, the mother relocated herself and the children to Saskatchewan.

In September2015, Alberta and Saskatchewan courts ordered the mother to return the children to Alberta where they have since been living with theirfather. [14] On March 10, 2016, the father applied for child support from the mother; on March 18, 2016, this court ordered the mother topay child support of $436.00 per month. [15] On March 10, 2016, the mother applied for a variation of the November 2013 parenting order; the earliest special chambersdate which could be given to the parties to hear that application was May 5, 2016. [16] The children are now 7 and nearly 6 years old.

The older of the children is in Grade 1 and the younger is in kindergarten. Thereports for both children from their teachers at an elementary school in Edmonton are positive: [he] has adjusted quickly in the Grade 1 classroom. He has made friends with students in the classroom and is progressing proficientlywith his studies. His father is very diligent to keep abreast with [his] work and the knowings of what goes on in the classroom as well asthe school. [he] is a wonderful addition to our classroom and adds much to our classroom discussions. [she] joined my class at the beginning of January.

She was very quiet and it took her some time to come out of her shell but she is doingvery well now in class. She is full of smiles and likes to participate in our large and small group activities. [she] shares her ideas in classand has made some great friendships with her peers in the class. We have enjoyed having [her] as a part of our class and we’ve been veryencouraged with her increase in happiness and participating from January onward. [17] Ms. McRae’s mother lives in Manitoba. Her aunt and uncle live in St. Brieux, Saskatchewan.

Until September 2015, thechildren had only had fleeting contact with their mother’s extended family.

[ 18 ] Ms. McRae has a Grade 12 diploma and a medical assistant certificate from an Alberta college. The mother worked at a fast food restaurant during her pregnancy with her second child and after that child was born. At some point, the mother began work as a clerk in the accounts receivable division of a distribution company; her total income from employment for 2014 was $37,627.55. In addition to her employment income, and her universal child care benefit, she was receiving $900.00 per month in child support from the father.

Her total income for 2014 was therefore in the range of $52,000.00. [ 19 ] The mother’s total income from employment in 2015 was $38,768.11. Approximately $21,000.00 of that came from her employment at the distribution company which she maintained until September 5, 2015, another approximately $5,000.00 came from EI, and another approximately $3,000.00 came from a fast-food restaurant in Saskatchewan. Beginning in September 2015, the mother has had no expenses for food and lodging. [ 20 ]

Section 54 of the Family Law Act , S.A. 2003, c. F-4.5, reads as follows: Suspension of child support order or agreement 54(1) Except where the court orders otherwise, where a child support order or a child support agreement is made when the child’s parents are living separate and apart and the parents resume living together, then, after the parents have lived together again for 30 days, the order or agreement is suspended.

(2) Child support is not payable during any period that a child support order or child support agreement is suspended under subsection (1).

(3) A child support order or a child support agreement ceases to be suspended under subsection (1) if the parents resume living separate and apart.

(4) This

section does not apply where the child support is being paid to the child or to a person who is not a parent of the child. 2. There has been a material changes since the last court order [ 21 ] The mother has established the threshold pre-requisite for bringing this application: there has been a material change of circumstance since the last court order in November 2013. The mother has left Alberta for Saskatchewan. [ 22 ] The fact that the parents did not follow the November 2013 order does not establish a material change of circumstance.

Although the parents did not follow the two weeks on/two weeks off order of the court, during the entire period of time between April 2015 and September 2015, the father exercised access when he could during April, May and June and the parties did resume that regime during July and August of that year.

The change in child support payments is not, in the circumstances here, a change which is material to the parenting issues; in any event, given the wording of s. 54 of the Family Law Act , it is possible that when the parties separated in April 2015, the father’s child support obligation reverted to the $529.00 established in the November 2013 order. 3. General principles in mobility cases [ 23 ] Both parents rely on Gordon as the binding authority in mobility cases.

In that case, the mother had obtained an interim custody order which allowed the father reasonable access on reasonable notice; pending trial, a pre-trial arrangement of “rotating” child care, a regime which we would probably today describe as shared parenting, was put into effect. At the conclusion of a custody trial in the spring of 1993, the mother was awarded “permanent” custody of the child with generous access to the father. After the trial, with the mother’s consent, the father spent more time with his child than was strictly allowed by the divorce judgment.

In the fall of 1994, the mother indicated her intention to move the child to Australia. The judge who heard the mobility application stated that he “relied heavily on [the trial judge’s] judgment and her findings of fact that the mother was the proper person to have custody of this child”. Therefore, the decision of the Supreme Court of Canada was dealing with the following separation/divorce paradigm “one typically enjoys custody of the child, the other access”. Therefore, Gordon does not explicitly address the shared parenting situation, whether that regime was imposed by a court or agreed between the parents.

However, the SCC did emphasize that, once a material change has been established, “then an assessment of the entirety of the present circumstances of the parties and the children which recognizes the interrelationship between the many factors to be considered is in order”. [ 24 ] Gordon also emphasizes the ubiquitous standard of Canadian law to the effect that, when dealing with disputes involving children, courts must be concerned with a child’s best interests. As the SCC emphasized at para. 20 of Gordon , those interests are highly contextual: no bright line rule can apply.

For example, although Parliament has chosen to articulate a “maximum contact” principle, the Supreme Court reminds us that, although maximum contact with both parents is “generally in the best interests of the child”, a child’s best interests might be best served by remaining with the custodial parent.

However, there is no legal presumption that the child’s best interests will be served by remaining with the custodial parent, where there is such a parent; the court will, however, “normally place great weight on the views of the custodial parent, who may be expected to have the most intimate and perceptive knowledge of what is in the child’s best interest”. [ 25 ] Gordon reminds us that “each child is unique, as is its relationship with parents, siblings, friends and community” and that the focus of the court’s inquiry is “not the interests and rights of the parents”. 4.

Application of the Goertz test to this case [ 26 ] As indicated above, the mother has established the threshold hurdle of a material change of circumstance.

i) The existing parenting arrangement [ 27 ] The last court order was for shared parenting. Indeed, that order particularly noted that the order “continued” a shared parenting regime.

[ 28 ] That order was apparently not followed by the parties. Nonetheless, the father had as much time with his children as he requested. [ 29 ] The parties then resumed cohabitation and again co-parented their children. Both parents were employed outside the home. Therefore, both parents had to make arrangements for occasional care of the children by others. [ 30 ] Following the separation in April 2015, for two or three months, the father only saw his children for a few days.

However, in July and August 2015, the shared parenting regime resumed. [ 31 ] Overall, the situation here is one in which both parents were actively involved in parenting their children and that shared involvement was recognized by court order. From prior to 2013 onward, neither parent could be characterized as the “primary” parent. Indeed, if anything, since September 2015, the father has been the de facto custodial, or primary, parent of the children. ii) The desirability of maximizing contact between the children and both parents [ 32 ] Both parents are clearly loving, able parents.

This is a situation where the legislative policy of maximum contact is indeed appropriate iii) The views of the children [ 33 ] These children are too young to express views on what is in their best interests. iv) The mother’s reasons for moving are not relevant [ 34 ] It is only in the exceptional case that a custodial parent’s reasons for moving are relevant on the mobility issue: the move must be relevant to the parent’s ability to meet the needs of the children.

Here, it is either the father who is the custodial parent, or both parents are the custodial parents. [ 35 ] In any event, the mother’s reasons for moving – financial need – have not been made out. The mother has not provided any evidence of her financial need in September 2015, such as a comparison of her expenses and of her income. On the contrary, she appears to have misrepresented the father’s financial contribution to the children’s welfare in the period after the final separation. The mother has presented no evidence that she had to move to Saskatchewan to financially maintain her children.

v) The disruption to the children of a change in custody [ 36 ] The mother has not presented any evidence of any disruption to the children if they were deprived of day to day contact with her.

I have no doubt that the children miss their mother and would like to see her more often; however, the only evidence on this application – the independent evidence from the children’s teachers - is that the children are currently happy and well adjusted. vi) The disruption to the children consequent on removal from family, schools, and the community [ 37 ] Although the mother does not say so explicitly, at best her application would only be allowed at the end of the school year, i.e. after her children have been in their current school for six months.

During this period of time, according to the evidence presented, the children have forged friendships with their classmates and have come to develop a relationship with their teachers. Since September 2015, the children have also been involved in church activities.

The children continue to be involved with the paternal relatives with whom they have had relationships for the whole of their lives. vii) Overall, what is in the best interests of the children in all the circumstances, old as well as new? [ 38 ] This is not a situation where the mother is, or was, the custodial parent; on the only previous occasion when a court has assessed the parenting regime, it continued a shared parenting regime.

This is not a situation where the children have become “accustomed in the new location”; on the contrary, this is a situation where the children have become accustomed to a school, to friends, to teachers, to an extended community all here in Alberta. This is a situation where these young children have already had one disruption in their school community; although children may be resilient, there is no reason to test that resilience unnecessarily. This is not a situation where the children appear to be negatively affected by the separation from their mother.

This is a situation where an involved father has remained an involved father and is willing to facilitate the children’s contact with the mother. Overall, then, it is in the best interests of these children not to disrupt the life they have been living, with the routines, extended family contacts, school relationships, and community involvement by moving them to another province. For those reasons, the mother’s application is denied. 5. Costs [ 39 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 5 th day of May, 2016.

Dated at the City of Edmonton, Alberta this 18 th day of May, 2016.

J.B. Veit J.C.Q.B.A. Appearances: Christina E. Riddoch, Family Law Office for the Applicant, Ms. McRae Michael Aytenfisu, student-at-law, Callioux Law for the Respondent, Mr. Hiron