BRH v RPS, 2016 ABQB 346

Court of Queen’s Bench of Alberta Citation: BRH v RPS, 2016 ABQB 346 Date: 20160624 Docket: FL03 47061 Registry: Edmonton Between: BRH Plaintiff - and - RPS Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This is a mobility application. BRH seeks permission to take the parties’ son, AS, to Spain to live there with her husband.

AS’s father, RPS, opposes the application and proposes that AS live with him after BRH leaves for Spain. [ 2 ] BRH is currently pregnant with her child with her husband, PTB. PTB is Spanish, and was in Canada for some years on a working visa. His working visa has expired and he has been unable to extend that status. He is currently on visitor status, and is required to leave Canada in the near future. [ 3 ] The baby is due shortly, and BRH’s plans are to leave Canada during the summer. She and PTB intend to reside in Figueres, Spain, where PTB has a large extended family.

Background [ 4 ] BRH and RPS had a relationship that produced AS. AS was born in Edmonton in 2010. BRH and RPS did not live together until after AS’s birth. They were together for approximately sixteen months, at which time they separated. RPS maintains that he was the primary caregiver for AS during that initial period, as BRH returned to work to supplement the parties’ incomes. BRH minimizes RPS’s role during that period, and describes it more as occasional babysitting while she worked on a part-time basis. [ 5 ] AS has, since separation, primarily resided with BRH. RPS has had reasonable and generous access.

There are three court orders regarding AS. A consent parenting order was granted by Judge S.C. Miller on July 9, 2013. In that order, RPS had access on Friday to Sunday for the first week of the rotation, and Wednesday to Friday the second week. A child support order was granted by Judge S.C. Miller on July 9, 2013, based on the parties’ then incomes. [ 6 ] A consent order was granted by Justice D.C. Read on July 7, 2015 dealing with travel outside the Edmonton area. [ 7 ] This application was commenced as a Family Law Act claim filed June 29, 2015.

The application sought permission to relocate effective December, 2015 on the basis that “the applicant ... has the opportunity to advance her career and business by working for a higher level professional soccer team in Spain. In addition, the Applicant can make use of her Business Management Diploma in employment as an Administrative Assistant”. [ 8 ] She also sought in that application to review child support based on the parties’ current incomes.

RPS testified that he voluntarily increased his child support payments to reflect his 2014 income in May, 2015. [ 9 ] On December 2, 2015, BRH brought an application for permission to take AS to Spain over the Christmas school break. That application did not proceed, and the trip to Spain did not happen. [ 10 ] An order was granted by Justice S.J. Greckol on September 2, 2015 adjourning a previously arranged special chambers application to deal with BRH’s mobility application at a two-day trial. The parties exchanged affidavits in relation to the application.

They were cross-examined, and also provided updated affidavits shortly before the trial. [ 11 ] The trial occupied four days, instead of the initially planned two. [ 12 ] Not surprisingly, the parties differ as to what has transpired over the years since AS’s birth. [ 13 ] BRH emphasized in her evidence that RPS had not wanted her to give birth. She also emphasized that RPS had not been present when AS was born.

She painted the picture of an initially disinterested father. [ 14 ] RPS did not dispute his initial opposition to BRH carrying their child, but explained that when BRH was in the late stages of her pregnancy, he was in Kelowna. He tried to get to Edmonton to be present at the birth, but the plane was delayed and he was some forty-five minutes late. [ 15 ] BRH also described RPS as being lazy, and not working at anything but as an employee in a marijuana grow operation.

RPS did not give evidence as to his occupation in the early years of their relationship, but noted that while he and BRH lived together, he stayed home and looked after AS while BRH worked as a massage therapist. [ 16 ] After the parties separated, RPS looked after AS to accommodate BRH’s massage therapy business. She has built that business into a stable operation that provides her with income from her own treatments as well as revenues from other employees in the business. [ 17 ] RPS has for the last several years worked in the funeral industry and has recently been promoted to a managerial position.

He no longer works shift work and his hours are now regular hours that would enable him to look after AS’s needs on a daily basis, with the help of family. [ 18 ] BRH notes that RPS has not always paid child support on time and that he was several months behind starting in particular in late 2015 and continuing until shortly before the trial of this matter.

BRH also points out that RPS did not increase his child support payments despite significant increases in his income. [ 19 ] RPS counters that the costs of these proceedings put him into some financial difficulties, and testified that he had caught up with his payments before trial. He also points out that BRH did not provide him with financial information, nor did she make any applications for increased child support until recently. [ 20 ] BRH also painted the picture of RPS as an abusive and controlling person and someone who was jealous of her and any relationships following their breakup.

In her affidavit sworn September 9, 2015, she swore that RPS had been controlling and “emotionally and psychologically abusive” after they separated. She stated that she had sought help through Today’s Family Violence Centre. The Centre’s records were sought to be put in evidence at the trial but were objected to by RPS.

Those attendances took place shortly before BRH applied for child support in 2013, and then again in 2015, shortly before the current application for mobility was made. [ 21 ] No evidence was provided as to any similar problems while the parties were together, or for some eighteen months after they separated. [ 22 ] RPS argues that BRH has not been honest with him with respect to her plans to go to Spain with AS, and argues that BRH has not been candid with the Court as to her motivations for wanting to move.

He suggests that the real reason for her wanting to move has always been to further her relationship with PTB.

[23] From the evidence of the parties and the previous court proceedings (which were put into evidence), it appears that the partieswere generally able to agree on matters involving AS until BRH brought this application to move AS to Spain with her. BRH looked aftermost of the day-to-day issues involving health, education and extracurricular activities. By all accounts, she is a good, caring and lovingmother and is closely bonded with AS. [24] RPS could be described as an “access parent” but that would minimize his role in AS’s life.

He has been available to pick upAS from school or day care when BRH was unable to do so, and he has had AS for holiday times. [25] While BRH describes him as an uninvolved parent, she acknowledges that AS is closely bonded with his father. [26] While these proceedings have put the parties in significant conflict, I am satisfied from the evidence that AS will becompetently and lovingly cared for by whichever parent charged with his primary care. [27] BRH has always suggested that RPS have almost all of the “holiday” time with AS if AS is allowed to move to Spain.

BRHtestified as to the school year in Spain, and believes that AS will have approximately three months off in the summer months, and willhave a lengthy Christmas break and an extended spring break as well. [28] BRH testified that she would bring AS to Edmonton for the summer months and that AS could be in RPS’s care during mostof that time.

She proposes that she bring AS to Edmonton for the Christmas holidays, and in lieu of child support, RPS could come toSpain during the spring break. [29] I will deal with the evidence more fully in my analysis of the factors to be considered under Gordon v Goertz, (SCC), [1996] 2 SCR 27. [30] I note that I have reviewed the previous affidavits and court proceedings involving these parties. A binder of these materialswas provided to me at the outset of the trial. Case law [31] The parties submitted a number of cases in support of their respective positions. BRH:

a) Gordon v Goertz, (SCC), [1996] 2 SCR 27;

b) Thie v Thie, 2014 ABCA 249;

c) RJF v CMF, 2014 ABCA 165;

d) McPhail v Karasek, 2006 ABCA 238;

e) GR v CM, 2003 ABCA 268;

f) Milton v Letch, 2013 ABCA 248;

g) Singer v Davila-Singer, 2002 CarswellOnt 4473(ONSC), aff’d (ONCA); and

h) Sangha v Sandhar, 2013 ABCA 259. RPS:

a) POT v BEM, 2010 ABCA 22;

b) CCR v MAV, 2010 ABQB 237; and

c) LMS v RA, 2014 ABQB 507. [32] The relationship of the parties is governed by the Family Law Act, SA 2003, c F-4.5. In that Act, “best interests of the child”is defined in para 18: 18(1) In all proceedings under this Part except proceedings under

section 20, the court shall take into consideration only the bestinterests of the child.

(2) In determining what is in the best interests of a child, the court shall (

a) ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and (

b) consider all the child’s needs and circumstances, including (

i) the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’sage and stage of development, (ii) the history of care for the child,

(iii) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, (iv) the child’s views and preferences, to the extent that it is appropriate to ascertain them, (

v) any plans proposed for the child’s care and upbringing, (vi) any family violence, including its impact on (

A) the safety of the child and other family and household members, (

B) the child’s general well being, (

C) the ability of the person who engaged in the family violence to care for and meet the needs of the child, and (

D) the appropriateness of making an order that would require the guardians to cooperate on issues affecting the child, (vii) the nature, strength and stability of the relationship (

A) between the child and each person residing in the child’s household and any other significant person in the child’s life, and (

B) between the child and each person in respect of whom an order under this Part would apply, (viii) the ability and willingness of each person in respect of whom an order under this Part would apply (

A) to care for and meet the needs of the child, and (

B) to communicate and cooperate on issues affecting the child, (ix) taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian, (

x) the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and (xi) any civil or criminal proceedings that are relevant to the safety or well being of the child. [ 33 ] These are similar to the factors required to be considered under Gordon v Goertz , and I will deal with the Gordon v Goertz factors specifically, rather than each of the Family Law Act factors.

Many of the Family Law Act factors (cultural, linguistic and religious, safety of the child, other court proceedings, for example) are not relevant to this application. [ 34 ] I observe at the outset that this is a highly fact-specific area of the law, and while a review of relevant case law is helpful to see how various Courts have approached the required analysis, there are no legal presumptions applicable to the analysis. [ 35 ] It always bears repeating paras 49 and 50 of Gordon v Goertz , which sets out the factors the Court is required to consider: 49 The law can be summarized as follows: 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 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 are entitled 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 of 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 the needs 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. 50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new locationmust be weighed against the continuance of full contact with the child’s access parent, its extended family and its community.

Theultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [36] Thie v Thie, 2014 ABCA 249, emphasizes the importance of following the Gordon v Goertz factors. [37] In Cavanaugh v Balkaron, 2008 ABCA 423, the Court of Appeal recognized that there are no longer any legal presumptionsthat apply to the Courts’ consideration of the best interests of the trial. It stated at para 12: [12] To be clear, there are no longer any presumptions or default positions that regulate decisions as to custody and access.

The soledeterminant is the best interests of the child. While other principles may be considered, particularly where both parents are equallysuitable, they must be viewed and determined from the standpoint of the best interests of the child. For instance, see A. v. A., 2005ABQB 607 , [2005] A.J.

No.1049, where the court refused to authorize a custodial arrangement that would have the childrenmove between the parents up to four times per week in a highly conflicted separation, because it suited the parents. [38] That position was reaffirmed in POT v BEM, 2010 ABCA 22. [39] Sangha v Sandhar, 2013 ABCA 259, appears to acknowledge a similar approach.

The Court of Appeal stated at para 2: [2] In determining whether to allow the child to go with his mother, the court must find whether it would be in the best interests of thechild to go with his mother, or to remain behind in the care of the father, without the mother being in Alberta. All parties recognize thatthe court does not have the power to order a parent to remain or leave a particular locale. Nor should it. The court must determine what isin the best interests of the child assuming the mother leaves.

That is the question before the court. [40] The importance of this factor can be seen from the trial decision in Singer v Davila Singer, 2002 CarswellOnt 4473 (ONSC),where the Court permitted a move to Germany.

The Court of Appeal at (ONCA) noted the significance of the newcountry being a signatory to the Hague Convention. [41] I note here that Spain is also a signatory, so RPS can take some comfort from that in the event there are difficulties enforcingAlberta court orders in Spain. [42] From a review of the cases cited by counsel, it is fair to say that there are some factors that have been given more emphasisthan others. That is not to say that the others do not need to be considered.

However, it appears that more careful consideration needs tobe given to several of the factors. [43] McPhail v Karasick, 2006 ABCA 238, emphasizes the rights parents have to make choices in their lives, including thelocation of their residence. At paras 44 and 45 the Court of Appeal stated: [44] According to this logic, parents cannot move unless the move is calculated to further the best interests of their children. Custodialparents cannot be limited in this way. Canadians are mobile and the courts are not the arbiters of the reasonableness of every decision acustodial parent makes.

Custodial parents cannot be held hostage to the place the access parent lives. Certainly access parents are not.Moreover, it is not an option to conclude that a child’s best interests are best served by both parties living in the same place any morethan it is an option to consider 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. [44] Milton v Letch, 2013 ABCA 248, notes the importance of a careful analysis as to the impact of removing a child from a long-standing primary caregiver: [13] Section 18(2)(

b) mandates the court to consider: (

i) the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’sage and stage of development; and (ii) the history of care for the child. Although the chambers judge listed these factors in his recitation of the governing law, he neverconsidered them. This is a young child for whom the mother has been the primary care giver throughout her life.

The chambers judge didnot discuss the effect that the removal of the child from her mother would have on the child or on her relationship with the mother. [14] The chambers judge’s decision was based primarily on the desirability of increasing the child’s contact with the father withoutconsidering the effect of removing the child from the mother’s care. [15] This was not just a failure to weigh a factor, this was an error in principle: MacPhail v Karasek, 2006 ABCA 238 , 273DLR (4th) 151 at para 54.

The chambers judge distinguished MacPhail on the basis that the mother in that case had been the solecustodial parent since birth whereas here, although the child had been in the primary care of the mother, the father and the maternalgrandparents had also been care givers. This is an artificial distinction as in both cases the mother was the only parent who had acontinuous care relationship with the child since birth.

As this court said in MacPhail at para 33: “ The trial judge should have addressedthe extent to which the child had bonded with the Mother, and the effect that separation might have upon the child as a result of the

Mother becoming simply an access parent.” [45] The nature of the bond between the child and the primary parent was also key in RJF v CMF, 2014 ABCA 165, where theCourt of Appeal held at paras 28 and 42: [28] In coming to the conclusion highlighted above, the court applied this court’s earlier decision in Christmas v Christmas, 2005 ABCA213 , 367 AR 172, as well as decisions by the Saskatchewan Court of Appeal in HS v CS, 2006 SKCA 45 , [2006] SJNo 247, and the Ontario Court of Appeal in Rushinko v Rushinko, (ON CA), 161 OAC 85, [2002] OJ No 2477.

InHS, the Saskatchewan Court of Appeal pointed out that the assessment of the effect of separating the child from the bonded parent wasnot a process which could be done dismissively. The court noted the following deficiencies in the trial judge’s reasons at para 24: He did not consider the particular role of the primary parent in the lives of the children: the bonding between the children and theirmother; the importance of maintaining the relationship with the psychological parent; and the desirability of maintaining the link.

He didnot consider the importance of maintaining stability in the relationships between the primary parent and the children. [42] In

summary, the trial judge erred in failing to take account, or give weight, to the child’s long-term relationship, and bond, with hisprimary caregiver – his mother. It is impossible, in my view, to consider the best interests of the child without considering the effect ofremoving the child from the parent who, up until this point, has had primary care. This was compounded by his errors in framing thequestion before him, and by considering the short-term, interim, shared parenting order rather than the corollary relief order in effect atthe time of the proposed move.

I would allow the appeal on this ground alone. [46] McAlpine v Leason, 2016 ABCA 153 is to the same effect. There, the Court of Appeal stated: [6] The main error here is a variant of the analytical problem identified by this Court in Christmas v Christmas, 2005 ABCA 213, 367 AR 172, Spencer v Spencer, 2005 ABCA 262 , 257 DLR (4th) 115 and RJF v CMF, 2014 ABCA 165 ,575 AR 125.

This Court has repeatedly cautioned against approaching the best interest test by comparing the effect on children if theyare permitted to relocate with the custodial parent versus maintaining the status quo (i.e. the children remaining with the custodial parentin their current location).

Approaching the issue in that manner ignores a key component of the Gordon v Goertz, (SCC), [1996] 2 SCR 27, 134 DLR (4th) 321, test – the effect of removing the child from the care of his or her primary caregiver afterthat parent moves. [47] From these cases, it would appear that at least in Alberta, the effect of removing a child from the care of the primary caregiveris a “super” factor. [48] It would also appear that the Supreme Court’s caution in Gordon v Goertz to rarely consider the moving parent’s reason formoving has been observed more in the breach than by following it.

That may well be because it is difficult to ignore situations where theparent’s motivation has little if anything to do with the needs of the child and might be viewed as being in the parent’s sole interests.

Italso may be that most of the cases that come to court fall within the “exceptional” category, as proposed moves that are child-motivatedor clearly take the child’s needs into consideration as a significant concern are not as controversial and less likely to go to court at all, letalone to the Court of Appeal. [49] It seems to me that it is frequently fair to argue that the parent’s motive for moving may reflect adversely on the parent’s“perception of the needs of the child or the parent’s judgment about how they may be fulfilled.” (from para 23 of Gordon v Goertz.) Analysis [50] Once it has been determined that there is a change in circumstances, or that permitting a requested move would amount to achange in circumstances, the Court must determine what custody and access regime is in the best interests of the child. [51] I would observe that these types of cases are among the most difficult matters brought before the Courts, and that thesolutions almost invariably result in a win-lose result.

One parent’s relationship with the child is likely to be significantly affected if themobility application succeeds. [52] While McPhail v Karasick emphasizes mobility rights and the ability of parents to move, it must also be recognized thatchildren are not the chattels of the primary caregiver and the bond between the child and the primary caregiver is only one of a numberof factors that must be considered. Evidence of the parties [53] As noted above, the parties were challenged by opposing counsel in a number of areas.

With RPS, cross-examination focusedon two main areas: his lack of involvement with AS’s schooling and extracurricular activities, and his credibility. [54] On credibility, RPS was challenged about his failure to obey court orders, namely his failure to disclose his income inaccordance with the initial child support order, his having greater income without increasing his child support, and his falling into arrearsin child support. [55] Neither party disclosed their incomes to the other until BRH indicated that she wanted an increase in child support.

When thatwas made clear, RPS voluntarily increased his support payments without the necessity of a court application. [56] Undoubtedly, parents should be aware of their support obligations and should pay careful attention to court orders. Voluntarydisclosure should have been made in accordance with the order. However, I do not view RPS’s failure to disclose without any request

being made of him as a wilful or deliberate breach of the order. Nor do I view it as any indication that he is unwilling or unable to comply with court orders. [ 57 ] As for his falling into arrears, I have less sympathy for that. Support is a fundamental obligation of parenting, and I found RPS’s explanation as to being burdened with other expenses somewhat hollow. Child support payments should not be withheld as a tactic, and RPS’s falling behind suggests some improper motive.

However, he has apparently cured his default. [ 58 ] He was cross-examined to some degree on trying to take advantage of BRH’s estrangement with various of her family members, but it appears from his evidence that he has been respectful of BRH’s wishes that he not expose AS to some of her family members. [ 59 ] RPS denied attempting to interfere with relationships between BRH and others, although I have no reason to doubt that RPS may have been critical of some of BRH’s boyfriends. I cannot conclude whether that was as a result of jealousy or concerns for AS, or both.

In any event, there was nothing in RPS’s post-separation conduct that gave me concern about his ability to parent AS or to keep AS’s best interests high in his priorities. [ 60 ] From his cross-examination, I am satisfied that RPS has to date played a lesser role in AS’s education and his extracurricular activities. His own activities with AS have generally involved family activities, as the extended S family appears to be close.

Only recently has RPS enrolled AS in any extracurricular activities. [ 61 ] RPS has not had a significant role with AS’s schooling, although he has met with teachers and specialists involved in AS’s education. My overall conclusion is that RPS has been content to leave most of the education issues and extracurricular activities to BRH. [ 62 ] That is for two reasons: opportunity and confidence in BRH’s abilities to care for AS.

BRH is obviously a capable parent and since she has AS for most of the weekdays, school and extracurricular activities fall mainly on her time. [ 63 ] As I observed during argument, it seems to me that RPS needs to step up to the plate more when it comes to the hard work of parenting and to take more responsibility himself for educational issues and extracurricular activities. [ 64 ] I had the impression that RPS’s evidence was somewhat strategic as he tended to maximize AS’s needs for special assistance at school, and he appears to have exaggerated to some degree the extent of his involvement with AS’s schooling and extracurricular activities.

I did not, however, have an unfavourable impression of RPS. [ 65 ] BRH was cross-examined extensively on a wide range of topics. The cross-examination was successful in raising a number of concerns about BRH’s credibility. [ 66 ] BRH is presently estranged from her mother and one of her brothers. She attributed that to her mother’s alcoholism and her brother’s treatment of his wife, amongst other issues she has with him. She has a number of siblings. One appears to visit regularly, and she speaks to another (resident in Florida) on a regular basis.

Her father lives in the basement of her residence. [ 67 ] Yet she swore that she had little by way of supports in Edmonton. It seems that her relationship with her mother broke down more so over her mother’s refusal to support her move to Spain than any real concerns over her mother’s drinking.

BRH’s denial of family supports was curious, and in my view was a strategic decision on her part to minimize connections with Edmonton. [ 68 ] BRH seems far more interested in her husband’s family in Figueres than her own, even though she has only visited them on one occasion and cannot easily communicate with them because of her lack of fluency in Spanish and their difficulties with English.

She is undoubtedly excited about the prospect of a new life in a new country with new people in her life. [ 69 ] That being said, it is of some concern that she has a poor relationship with her own family and appears to be in the process of pushing them away. I found her evidence of the supposed faults with her family members to be exaggerated. [ 70 ] BRH minimized if not denied any learning problems with AS. In my view, that again was a tactical move on her part. She was not forthright in her evidence concerning AS’s involvement with educational specialists.

She denied that AS had specialists and testified that the services provided to AS were part of services given to all of the students in his class. [ 71 ] The school records were put into evidence for the proof of their contents by agreement, avoiding the necessity of calling school personnel. The school records tell a very different story about AS’s schooling to date and the services he has been receiving.

While it may be true that the services accessed by AS were available to all of the students in his class, AS was only one of a few who actually used the services. [ 72 ] Conferences attended by AS, BRH and RPS were only for the few students who needed the services.

Ultimately, BRH’s evidence about the level of AS’s progress and the absence of any ongoing needs was not credible. [ 73 ] Indeed, her testimony cannot be reconciled with the school records, including emails or text messages between her and AS’s teachers. [ 74 ] The contrast between her evidence that AS’s teachers were supportive of her proposed move to Spain and the school records (which have been admitted in evidence for proof of the truth of their contents) is troubling. [ 75 ] BRH has been less than forthcoming with RPS about her reasons for wanting to move to Spain.

The relationship with her husband was only disclosed to RPS about a year before the trial. BRH had known PTB since sometime in early 2014, and their relationship became serious by the fall of 2014 when they moved in together. [ 76 ] BRH’s application for permission to move AS to Spain was initially based on job opportunities and furthering her career as a

sports massage therapist. She appears to have exaggerated the opportunities and instead of having a job lined up with FC Barcelona as was implied from her affidavit evidence, she only had a letter of introduction to that team, and there was no evidence that she had actually made contact with the team. [ 77 ] The career-advancing position as an administrative assistant appears now to be some unspecified work with PTB’s father’s company in Figueres.

The lease for an apartment in Figueres put into evidence is a lease with PTB’s mother. [ 78 ] BRH had approached RPS in 2014 about the possibility of spending a year in Spain with AS, with no mention of PTB or his family. He was not necessarily opposed, but that was on the basis that it was temporary. [ 79 ] In December, 2014, BRH deceived RPS about her travel plans. She represented to him that she had an opportunity to go to Thailand and pursue a kick-boxing opportunity there. This was to persuade RPS to look after AS for the whole Christmas vacation.

In fact, her plan was to go to Figueres with PTB and to meet his family. [ 80 ] BRH’s explanation was not apologetic, but rather that she feared that if she told RPS the truth, he would not have agreed to look after AS while she took the trip. [ 81 ] I am less concerned about her communications with RPS about Father’s Day contact with AS in June, 2015. BRH did not disclose that she and PTB were travelling to Montana for visa purposes. RPS felt deceived; BRH feared that RPS would do something to interfere with PTB’s immigration status.

Nevertheless, there was some element of deceit in her communications with RPS. [ 82 ] What I take from these incidents is that getting her way is more important to BRH than is being candid and fully truthful. [ 83 ] That assessment is also supported by Mr. Skovberg’s cross-examination of BRH relating to her visits to Today’s Family Violence Centre. There were few specifics of RPS’s allegedly controlling behaviour other than her concerns over RPS’s reaction to her relationships with other men and financial issues.

Those visits, their timing and the attempt to introduce them at trial as evidence that RPS was controlling and abusive, appear very strategic and without any real foundation. [ 84 ] BRH also exaggerated AS’s ability to speak and understand Spanish. She does not speak Spanish herself. She has enrolled AS in a Spanish class on Saturday mornings. He does not go to that class on the Saturday mornings when AS is with his father.

While he has learned some words and can communicate to some extent with PTB, the actual words he has learned are few in number. [ 85 ] BRH’s evidence on this application has not been fully credible, and I have serious concerns about these aspects of her testimony. That does not mean that she is not a good parent, and it does not diminish AS’s strong relationship with her. It does tell me that I need to treat her evidence with great care in assessing the relevant factors. [ 86 ] PTB testified briefly about his relationship with BRH and with AS. My impression of him was very favourable.

He struck me as a sincere person, wanting to do the right thing. He was forthright in his answers, and I did not get the impression that he was being anything other than truthful. [ 87 ] I was impressed by his approach to RPS to try to meet with him, knowing that they were sharing at least time with AS. PTB appears respectful of RPS’s role as AS’s father and that he does not want to interfere with that role or usurp it, recognizing the reality that he lives with AS’s mother who is AS’s primary caregiver.

It was not lost on me that PTB seems to have played a greater role in AS’s extracurricular activities than has RPS. Gordon v Goertz factors [ 88 ] I do not think I need to spend time discussing whether a move to Spain is a change in circumstances. AS is Canadian; born and raised in Edmonton. He has lived in Edmonton his whole life. He has lived with both parents together, and then in circumstances where his parents lived in the same city the rest of the time.

His father has always exercised reasonable access to him. [ 89 ] It is being proposed that he move to a country where he does not speak the language and attend school in Spanish. He will live in a residence not with his maternal grandfather present but rather with his step-father’s extended family. [ 90 ] I cannot imagine an argument that there is no change of circumstances here. [ 91 ] Thus I move to the assessment of the best interests of AS.

Existing custody relationship and relationship between the child and the custodial parent [ 92 ] BRH is by the agreement of the parties and confirmed by court orders the custodial parent; the parent with day-to-day care and control of AS. [ 93 ] RPS acknowledges the close relationship between AS and his mother, and also acknowledges BRH’s skills as a parent. Her role as parent must be emphasized. It appears from the evidence that she has been the parent primarily involved in AS’s schooling and other activities.

She is the one who has generally taken AS to and from school and to and from extracurricular activities. But for the swimming classes arranged recently by RPS, all of AS’s organized activities have been planned and arranged by BRH. She has played the primary role with AS’s school, although RPS has been involved to a lesser degree with parent-teacher meetings. [ 94 ] There appear to be no difficulties in their relationship.

[ 95 ] This factor clearly favours BRH as the custodial parent. Existing access relationship and relationship between the child and the access parent [ 96 ] RPS has, since the parties’ separation, always been an “access” parent. His access is not “typical” if there is any such thing anymore. He alternates between Friday to Sunday access one week and then Wednesday to Friday access the next. [ 97 ] The parties have shared holidays and special occasions cooperatively. [ 98 ] BRH acknowledges that AS is well bonded with his father. He loves his father and enjoys his time with him.

The relationship appears to be one characterized more by fun. That is not surprising because of the extent of the time RPS has with AS, although it is certainly clear to me that RPS could have become more involved with AS’s schooling and activities than he has to date. [ 99 ] There appear to be no difficulties in the relationship between RPS and AS. [ 100 ] This factor, however, does not detract from the strength of BRH’s role as custodial parent, and demonstrates that RPS’s role as access parent is something that appears to have worked and would continue to work, but for the new reality of mobility.

Desirability of maximizing contact between the child and both parents [ 101 ] Many parents keep track of the number of days per week or year with their child. That may be for financial purposes because of the effects of shared parenting as defined in the Child Support Guidelines. [ 102 ] One of the unique factors in this case is BRH’s proposal regarding access by RPS if AS is allowed to move to Spain. She offers virtually all of the school holiday time to RPS.

If BRH’s information as to the Spanish school system is correct, AS would be in Edmonton for approximately three months in the summer; RPS would have approximately three weeks at Christmas and would be able to visit AS (in lieu of child support) in Spain for at least a week at spring break time.

That suggests perhaps 120 full days per year, which may (if one calculates the number of hours involved) exceed the access time RPS has at present. [ 103 ] From his perspective, RPS is able to have meaningful time with AS on six of every fourteen days, although if measured on an hourly basis, has four full days every two weeks.

That would equate to some 104 full days. [ 104 ] RPS offers BRH the same access: She can have AS for the Edmonton school summer break, as well as most of Christmas and spring break. [ 105 ] Essentially, these parties are arguing over who will do the heavy lifting as a parent, looking after AS’s day-to-day needs, his education and his activities. They are willing to let the other parent enjoy the holiday times. [ 106 ] Some parents might leap at the opportunity to have virtually all of the holidays or “fun” times if fun is equated with holidays. Not BRH and RPS.

It is to both their credit that they seek to play meaningful roles in their child’s life. [ 107 ] Technology will undoubtedly play a role. With technology, the absent parent can have daily face-to-face time with their child via Skype or Facetime, such that communications during non-parenting periods are not limited to one-dimensional telephone calls or written communications. [ 108 ] This case does not turn on maximization of contact between the parties. [ 109 ] I do have some concerns about the use of child support as a way of funding access. Access costs will be very significant.

BRH will have limited income in Spain. She suggests that she may not have to work because of supports from PTB’s family. PTB is not expected to earn a significant income from his new business venture in Figueres. BRH’s income will be modest if she works in Spain. While their expenses may be lower because of inexpensive rent paid to PTB’s mother, there is no obvious financial advantage to AS being in Spain and having all of the child support spent on travel. Views of the child [ 110 ] For a child of AS’s age, this is not a significant consideration.

While AS is undoubtedly excited at the prospect of a different country with different people to meet, there is no independent evidence as to the strength or basis of AS’s views. This is not a factor in this case. Custodial parent’s reason for moving where it is relevant to the parent’s ability to meet the needs of the child [ 111 ] It is clear that BRH’s move is not in any way tied to any benefit for AS. She is moving because she wants to be with her husband. PTB cannot live in Canada because of his immigration status. BRH is pregnant with their child and obviously wants her family with PTB to remain intact.

Those are perfectly natural and understandable reasons for wanting to move to Spain. She is not moving to Spain to limit RPS’s role in AS’s life. [ 112 ] Where I have concerns is in terms of what the move may show about BRH’s abilities to consider AS’s best interests and to act on them. As I have said above, BRH’s credibility is an issue in this trial. I am satisfied that she has tailored her evidence to suit her purpose: being allowed to move to Spain with AS.

[ 113 ] I am concerned that she has not thought out in any meaningful way what impact the move may have on AS. He is a six-year-old boy who has struggled with learning issues.

The school file shows many consultations relating to speech therapy and occupational therapy. [ 114 ] School “progress notes” contain an entry for September 15, 2015 that “mom thought perhaps (AS) may no longer need speech/lg supports.” A kinder screening assessment that day noted “significant concerns re receptive language, social language.” [ 115 ] An assessment dated October 23, 2015 concluded that AS was “experiencing some difficulty” with social skills and approaches to learning, cognitive skills and language and communication. He was “experiencing significant difficulty” with physical development.

He was found to show “appropriate development” only with respect to awareness of self and environment. [ 116 ] A meeting among AS’s teacher, the speech language pathologist, the occupational therapist and the emotional behavioural specialist on November 7, 2015 states that “AS has concerns in the areas of receptive and expressive language and social communication skills ...

Due to AS’s language difficulties he struggles with understanding that it is not his turn or that the item is being used by someone else and that he needs to use his words to ask for what he wants ... he gets frustrated at structured activities.” [ 117 ] The conclusion of this assessment was that AS be coded “Code 47 – Severe Delay Involving Language.” [ 118 ] As at December 3, 2015, the records indicate that “mom has concerns re speech, have talked about reading to help AS settle, build his language.” [ 119 ] A consultation report dated January 16, 2016 describes AS as a child “who (has) difficulty understanding spoken language.” Specific plans to assist AS with expressive communication, ability to follow directions, and to stay on task were implemented for the period January, 2016 to April, 2016. [ 120 ] AS has, since he entered pre-school, been enrolled in educational programs and has been provided with educational supports tailored to help his learning needs.

He has issues, as identified by the school records. This is not a situation where he “had” issues, as testified by BRH. [ 121 ] I am concerned about BRH’s evidence concerning the support she claims to have had from AS’s teacher relating to transitioning to Spain. There is no evidence in the detailed notes from the school that any support was provided. Rather, BRH made inquiries concerning AS’s ability to learn another language.

I can only conclude from comparing BRH’s evidence at the trial, her evidence on questioning and her affidavit evidence that she has not been entirely truthful about her interactions with the school. [ 122 ] It appears that AS has made considerable progress, and I also find that RPS has perhaps exaggerated the extent of AS’s needs. However, the needs identified by the school are neither imaginary nor trivial. The school system here has brought significant resources to assist AS in achieving his potential.

Indeed, he may have limitless potential, but there are still challenges, at least as identified by the school. [ 123 ] BRH has obtained information to the effect that there are some educational supports at the school in which she intends to enrol AS in Figueres. The information on these supports was sketchy, and pales in contrast with the supports AS has been receiving in Edmonton, and which he might expect to continue if he does not relocate. [ 124 ] On the evidence before me, I conclude that BRH has downplayed AS’s needs as identified by his teachers and consultants.

It would have been helpful to me to have expert evidence on AS’s needs and what is needed to meet them. In the absence of such evidence I conclude that AS’s educational needs will be better met for the time being by staying in the school he has attended for the last four years with access to the resources he has benefitted from over that period and by continuing to learn in his native language, English.

AS’s needs and abilities may change, but there is no credible evidence that he no longer needs the supports he has been receiving. [ 125 ] It seems to me that a child who has been assessed as having “severe delay involving language” and who has been receiving professional services from speech language, occupational therapy and emotional behaviour consultants for the past four years may have significant difficulties being educated in a language that he presently has a vocabulary of some twenty to fifty words. [ 126 ] I have serious concerns that BRH is putting her own interests in moving to Spain with her husband ahead of AS’s demonstrated educational needs. [ 127 ] She has not demonstrated that there is a reasonable plan in place to meet AS’s education needs.

Indeed, the evidence shows that she has minimized AS’s needs in her own mind. [ 128 ] BRH’s attitude to these, and her minimization of AS’s needs to try to fulfill her goal of being able to move to Spain, reflect poorly on her ability to recognize and meet AS’s needs. [ 129 ] A challenge in this area is that RPS has unproven skills in being significantly involved in AS’s education. He has let BRH do most of the parenting in that area. He has mainly left BRH to determine AS’s extracurricular activities.

Indeed, it appears from the evidence that PTB has been more involved in these activities than has RPS. [ 130 ] RPS has had some involvement with the school, and has demonstrated an understanding of AS’s needs and the benefits of continuity in his educational development. I hope this interest is sincere and sustainable, and not just strategic or tactical in the context of this current dispute. [ 131 ] On the evidence before me, this is a factor that strongly opposes a move at this stage of AS’s development. Disruption to the child of a change in custody

[ 132 ] There will undoubtedly be significant disruption to AS if he is placed in his father’s primary care. He has since separation been in BRH’s care. RPS has been the access parent. He has also bonded with PTB, and may well be excited about the arrival of a sibling. [ 133 ] If in Spain, AS will have the support of his mother and step-father, and will become part of PTB’s extended family there.

AS does not know any of the family members, and will have difficulty communicating, at least until he becomes more fluent in Spanish. [ 134 ] RPS has been actively involved as an access parent, and AS is bonded to him and RPS’s extended family here. He has cousins here.

His mother’s extended family is largely here, including the grandfather who has lived in the same home for some time and an aunt who apparently visits regularly. [ 135 ] In the absence of any specific evidence, and in particular any objective evidence on the point, I conclude that AS would certainly be impacted by a change in primary parenting from his mother to his father.

This would be partly mitigated by generous access arrangements, including the use of technology. [ 136 ] While decisions from the Court of Appeal require that this factor be given strong consideration, the cases go short of finding that there is a presumption in favour of maintaining the role of the primary parent. Gordon v Goertz requires a fresh analysis. [ 137 ] Here, this is undoubtedly a factor that favours BRH, but the evidence does not indicate to me that there would be a major disruption to AS.

Disruption to the child consequent on the removal from family, schools and the community he has come to know [ 138 ] There will undoubtedly be disruption if AS is removed from Edmonton. He would essentially be raised in Spain.

That would involve significant changes in language and culture, as well as an inevitable distancing from his father, his father’s family and to some extent his mother’s family (to the extent that they have not already been distanced by BRH’s apparent estrangement from most of her family members). [ 139 ] There was no evidence of particular attachments to friends or activities, and having regard to AS’s age, it is likely that the significant attachments in his life are to his parents. [ 140 ] I have already remarked on educational concerns.

In this area, I conclude on the evidence before me that AS would be significantly disrupted in his education. He has demonstrated needs.

I am not satisfied that BRH adequately recognizes these needs, or has put any realistic plan in place to deal with those needs in Spain. [ 141 ] I have no reason to doubt the quality of education in Spain, but I cannot see that a child coded with severe language deficits would be well served by being educated in a language he presently cannot speak or understand, but for a few words. [ 142 ] This factor strongly favours AS remaining in Edmonton, at least until it can be shown that his educational needs can be adequately met elsewhere.

Much has been invested in getting AS to where he presently is; it would in my view be risky to have him educated elsewhere, in a different language, and without the supports he has received for four years in Edmonton. [ 143 ] Educational issues featured strongly in CCR v MAV , 2010 ABQB 237 . Justice Strekaf observed at para 21: 8. M. has some speech and other developmental delays that are in the process of being assessed. A preliminary speech/language assessment at the Drumheller Health Centre was conducted in January 2010 and the report made available in March as a result of steps taken by Mr. V. in November.

A follow-up appointment is expected for April and an assessment of M. at the Child Development Centre is also being arranged. If M. was to move to British Columbia, new arrangements would have to be made for her to access diagnostic and treatment services there. There was no evidence provided with respect to the length of waiting lists or availability for such services. The importance of early intervention and treatment cannot be overstated. [ 144 ] I see the continuity of AS’s specialized programming in Edmonton as being very important at this stage of his development.

Disruption to the education he has been receiving seems to me to pose a great risk at this time. Conclusion [ 145 ] It is obvious from the above analysis that two factors are key to my conclusion. My unfavourable view of much of BRH’s evidence reflects adversely on her parenting skills.

She is, in my view, minimizing AS’s difficulties and exaggerating supports for her moving to Spain with AS to further her own interest in moving to Spain. [ 146 ] If AS did not have the educational and developmental difficulties identified by the teachers and professionals who have worked with him over the past four years, his relationship with his mother and the stronger role she has played in his development to date might well have tipped the relevant factors in favour of the move.

On the evidence, and in particular the evidence from the school records, I cannot conclude that a move is in AS’s best interests. [ 147 ] The risk to his education if he moves is, in my view, greater than the risk of having AS primarily parented by his father, who has an unproven record in regard to the heavy lifting of parenting: being responsible for the day-to-day care, upbringing and nurturing. [ 148 ] RPS emerged from the trial mainly unscathed as to his credibility. He appears to be sincere, and I have no reason to doubt his capabilities.

His parenting plan, while not detailed, shows that he is able to spend most of the after-school time with AS as he no longer works shift work or on weekends. He has family supports to supplement his own availability.

[ 149 ] RPS needs to become more active as a parent, and he needs to get past his unwillingness to cooperate with PTB. The reality is that PTB has been in AS’s life for some time, and will continue to be in AS’s life as an active step-father. [ 150 ] At the end of the analysis, BRH has failed to satisfy me that she should be allowed to take AS to Spain. In that regard, AS should be enrolled in Grade 1 in Edmonton for this September. Until BRH leaves for Spain, the existing parenting arrangements should continue. [ 151 ] Once she leaves, RPS will have primary care of AS.

BRH should have very generous access to AS, including most of the summer school break and Christmas. Since she will continue to have business interests in Edmonton and has family here, she was proposing that she would bring AS to Edmonton for the Christmas break. [ 152 ] She should be able to do so, and have all but a few days of the break with AS.

RPS should facilitate AS’s travel to Spain for all but the last two weeks of the summer holidays, or if BRH prefers to come to Edmonton, she should have AS for that portion of the summer. [ 153 ] Whenever BRH can come to Edmonton, she should have most of that time with AS. Extensive telephone and Skype-type access should be arranged. [ 154 ] I leave it to the parties, in the first instance, to agree on a

schedule for access consistent with the Edmonton school calendar. I will retain jurisdiction to finalize the access

schedule for the first year. [ 155 ] I also leave it to the parties to determine the child support payments BRH is to pay to RPS on her relocation to Spain. Heard on the 26 th and 27 th days of April, 2016 and the 4 th and 5 th days of May, 2016. Dated at the City of Edmonton, Alberta, this 24 th day of June, 2016. Robert A. Graesser J.C.Q.B.A. Appearances: Rhyannon L. O'Heron Gordon Zwaenepoel for the Plaintiff Douglas N. Skovberg Skovberg Hinz for the Defendant