SAC v TPM, 2016 ABQB 389

of Queen’s Bench of Alberta Citation: SAC v TPM, 2016 ABQB 389 Date: 20160708 Docket: FL03 34882 Registry: Edmonton Between: S.A.C. Applicant - and - T.P.M. Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] S.A.C. seeks an order permitting her to move with the parties’ three children to Hope, British Columbia. The children are a daughter aged 9, and twins aged 7 (a daughter and a son). Mr. M opposes the proposed move.

The application is governed by the Family Law Act , S.A. 2003, c. F-4.5 as amended. [ 2 ] Ms. C and Mr. M commenced their relationship in 2004. Their first daughter was born in September, 2006. The twins were born in April, 2009. They separated in March, 2012. [ 3 ] On April 13, 2012, an Interim Parenting Order granted in the Provincial Court of Alberta ordered that parenting time would be “shared 50/50” between the parties on an alternating weeks basis.

A second Provincial Court Interim Parenting Order granted on May 11, 2012, continued the same arrangement which remained in force for about nine months in total following the parties’ separation. [ 4 ] On January 9, 2013, Moreau J. of this Court granted a Consent Order which gave the parties “joint custody” of the children, primary care to Ms. C and specified parenting time to Mr. M. His main parenting time was every second weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. The Order also divided holiday parenting time between the parties.

[ 5 ] Other aspects of the parenting arrangements have been addressed in subsequent applications and orders, in particular in a further Consent Order granted December 11, 2014, but the arrangement with regard to primary care and access parenting time have governed for the 3.5 years since the Consent Order was granted. [ 6 ] Ms. C commenced this application on June 10, 2015 by filing a Family Law Act Claim. At the time, Ms. C was not represented by counsel. She stated the basis of her claim as follows: I am wanting to relocated to Fraser Valley, BC with our children.

I need to have our court order updated to include that I can move our children’s residence to British Columbia. With the move to British Columbia, we will need to draft a new order to ensure that our children can maintain a relationship with their father here in Alberta. [ 7 ] In the supporting statement she said: I believe that the move to BC will be in our children’s best interests. This will give them the opportunity to meet new people and to have a fresh start in a new town. I am also hoping to go back to school while I am there, an opportunity that will enrich our children’s lives.

This move will help bring balance to our children’s lives, emotionally, physically and mentally. Living in BC will give our children the chance to be closer to nature and a way of life they cannot get here in Alberta. [ 8 ] Formally, the only change Ms. C sought in her claim documents was as to Mr. M’s parenting time. She sought no change to the provision in the January 9, 2013 Consent Order by which the parties were granted “joint custody” of the children. However, she recognized that Mr.

M’s parenting time, as set out in the existing order, would not be practically workable if she moved with the children to BC. [ 9 ] In her pleading, the actual changes she proposed were that Mr. M’s alternating weekend parenting time would be deleted from the order and instead of the week of spring break alternating between the parties, Mr. M would have the children every spring break. Christmas and summer breaks would continue to be divided equally between the two parents. [ 10 ] But in her evidence at the hearing of this application, Ms. C proposed that Mr.

M should have parenting time for all of every summer break, all of every spring break, and any time the children have a school break of four days or more. The Christmas break would be an exception. It would be divided between the parents as contemplated in the existing order. [ 11 ] Also in her oral evidence, although not in her claim document, she proposed what amounts to a variation of the “joint custody” aspect of the current order. She testified that she wants exclusive authority to make all parenting decisions and that Mr.

M would have only the right to know of decisions she makes, but not to make or have input into them. What she proposes is essentially sole custody. [ 12 ] Mr. M’s response to the application is simple. He says he disagrees with the proposed variation of the existing order because, “It is not in the best interests of the children that the Parenting Orders dated January 9, 2013 and December 11, 2014 be varied.” He makes no cross-application. Specifically, he makes no application for primary care of the children to be transferred to him should Ms. C move to Hope, BC.

However, in his responding affidavit, he swears: If the Applicant wants to move to British Columbia without the children then I will gladly agree to become the primary caregiver of the children. [ 13 ] In August 2015, subsequent to commencing this application, Ms. C learned that the children alleged that their older male cousin had sexually abused each of them while they were in the care of their grandmother, Ms. C’s mother. This was in the same community, near Edmonton, where Ms. C and the children presently live. Ms. C reported the allegations to the police. The children were interviewed.

Criminal charges against the cousin are in process. [ 14 ] This situation has caused grave damage to the relationship between Ms. C and her mother and sisters. Her mother was previously very supportive of Ms. C, but Ms. C disagrees strongly with the position her mother and sisters have taken in relation to how the cousin, who is alleged to have abused the children, should be dealt with. The cousin continues to reside in the grandmother’s home. Ms. C and her mother do not speak. There has been angry contact between Ms. C and one of her sisters.

Any relationship the children had with their extended family on their mother’s side has been severely damaged. [ 15 ] Ms. C arranged for the children to have counselling in response to the abuse. She ended the counselling when she learned that the alleged abuser was being counselled in the same office as her children, albeit by a different counsellor. At the time of the hearing of this application, arrangements for a different counsellor were in progress. Mr. M was of the view that Ms.

C has acted unacceptably slowly in putting the substitute counselling arrangements in place. [ 16 ] It is clear that a very significant part of Ms. C’s desire to move with the children to Hope, BC, is to remove herself and the children from the community in which her extended family, including the alleged abuser, reside, in order to avoid further uncomfortable and potentially traumatic contact. [ 17 ] Ms. C is in a relationship with DM. She described her relationship with DM as “off and on” for the last three years. They do not live together, although DM often stays at Ms.

C’s residence with his two children, a girl who is 12 and a boy who is 14. I understand that DM has sole custody of these children and that their mother is not involved. Ms. C testified that her children and DM are very close and have a good relationship, that DM helps her with her children, takes care of them when she has to work, and engages with them in recreation activities. [ 18 ] Ms. C’s planned move to Hope, BC, would be with DM. They would live together with the five children. [ 19 ] Neither Ms. C nor DM has a job to go to in Hope, BC. Ms. C testified that DM believes he has good job prospects in Hope.

Ms. C intends to be a student and not to work, at least initially, after the move.

[ 20 ] Ms. C has looked into schools for the children in Hope. In fact, she has prospectively registered them for the fall of 2016. She testified that the school she has chosen has a significant proportion of students of aboriginal descent and has programs relating to aboriginal culture. She has also found a counsellor for the children in Hope. She has made inquiries regarding the availability in Hope of the extracurricular activities in which the children currently participate and has determined that they will be able to continue in those activities after the move. [ 21 ] Ms.

C is also of the view that Hope, BC, provides a better environment for her children to be engaged in aboriginal culture and way of life, and to acquire an appropriate relationship with the land, than is presently the case. More than once in her evidence, she referenced the beauty of the mountain environment in which Hope is located.

She is motivated both by a desire to remove her children from an environment where she believes they are in constant danger of being re-traumatized by contact with their abuser and by a desire to have them live in an setting of great natural beauty and in which, she believes, they will develop a strong appreciation of their aboriginal culture and heritage. [ 22 ] Ms. C is not employed. Her income is from family allowance and social assistance. Mr. M pays child support.

She has been employed in the past but has left her employment because it brought her into contact with members of her family from whom she is estranged because of the abuse of her children. Ms. C does not expect to be financially dependent upon DM in their proposed living arrangement in BC. She believes she would continue to be as financially independent as she presently is. [ 23 ] In cross-examination, Mr. Slupek explored the strength of the relationship between Ms. C and DM.

It is clear that their relationship has gone through several rough patches, and although it is presently healthy, it cannot be said with confidence that the relationship is likely to remain that way. There is also significant uncertainty as to how well the two families, Ms. C and her three children and DM and his two children, will combine to live together under one roof. [ 24 ] Mr. Slupek also questioned Ms. C about a “suicide note” she wrote sometime before July 2013, during one of the rough patches in her relationship with DM. Mr.

M testified that DM gave him the note having found it, ripped up and discarded by Ms. C. On July 26, 2013, Mr. M filed an application for interim primary care of the children, relying on the suicide note as evidence that it was not in the best interests of the children to be in Ms. C’s care. The application was set to be heard in Special Chambers on November 14, 2013, but was adjourned sine die by consent. The merits of the application were never been judicially considered. [ 25 ] Mr. M resides in a community just outside of Edmonton. He is married.

In addition to the children who are the subject of this application, he has a 13 year old son and his wife has an 8 year old daughter. [ 26 ] Mr. M testified that he was closely involved in the care and nurturing of the three children who are the subject of this application when he and Ms. C were together. At that time, his son by a previous relationship also lived with them. [ 27 ] Since the January 2013 Consent Order, Mr. M’s regular parenting time has been limited to every other weekend.

He acknowledged that sometimes he cannot spend all of his allotted parenting time with the children because of the demands of his work. In such cases, he arranges for babysitting. If work does not interfere, he is with the children for all of his access weekend. [ 28 ] Mr. M testified that he would like to attend the children’s activities more than he does but is frustrated by the fact that Ms.

C often does not advise him of those activities so that he can make arrangements to attend. [ 29 ] In his oral testimony, he reiterated the statement in his affidavit that he is willing to have the children live with him should Ms. C move to BC without them. [ 30 ] He expressed doubts about the reasonableness of Ms. C’s expectation that the children will be able to gain closer contact with aboriginal culture in Hope, BC, than they can here. He suggested that the aboriginal culture in the lower Fraser Valley of British Columbia is quite different from the Cree culture into which the children were born.

In his view, it is more likely that they would lose contact with their Cree culture and heritage if they lived in Hope, BC. [ 31 ] He testified that the children have strong bonds with their extended family on his side, and two of his siblings also testified in the same vein. [ 32 ] Mr. M has a good and secure job in the security field. He is in charge of a large staff. His hours are scattered. He is essentially on call all the time. His work hours are neither regular nor set; if a situation requires it, he must be at work.

In such circumstances, the care of his son and step-daughter falls to his wife or, I assume, given that the son is 14 and the daughter is 12, to the children themselves. [ 33 ] Mr. M testified that he and Ms. C are unable to effectively communicate with each other. Ms. C’s evidence was to the same effect. It appears that the level of hostility between them continues, four years after their separation, to be such that they cannot cooperate with each other in the parenting of their children. Change in needs or circumstances [ 34 ] The order Ms.

C seeks is a “variation order” within the meaning of the Family Law Act , s. 34(2) because she seeks to vary two parts of the existing order: the provision ordering “joint custody”; and the provisions regarding Mr. M’s access time. Section 34(3) requires that before a variation order is made, “the court shall satisfy itself that a change in the needs or circumstances of the child has occurred since the making of the parenting order.” [ 35 ] So the first question is: Is there something in the present circumstances that would not have been considered when the existing order was made?

If so, the required change in needs or circumstances of the children will be present. [ 36 ] The circumstances considered at the time of the existing Order (albeit considered by the parties and not by the court given that the parties consented to the order) were that Ms. C would provide primary care for the children in a location near enough to Mr. M

that he could exercise the parenting time contemplated in the Order. It was also apparently contemplated that the parties were capable ofcooperating so there was no need to allocate the powers, responsibilities and entitlements of guardianship between them as contemplatedin FLA s. 32(2)(

a) and that it was sufficient to simply establish a “joint custody” regime. Further, apparently it was concluded that therewas no need for a provision regarding dispute resolution as contemplated in FLA s. 32(2)(c). [37] I find that circumstances have changed from those extant at the time of the Consent Order. The changes are Ms. C’s intendedmove to BC, the alleged sexual abuse of the children in their current environment, and the apparent inability of the parties to cooperate inthe parenting of their children.

Best interests of the children [38] Given that the required change in the needs or circumstances of the children exists, FLA s. 34(3) requires that, in consideringwhether to make the variation order sought, I should consider “only the best interests of the child, as required by

section 18 and asdetermined by reference to” the change in circumstances. [39] FLA s. 18(2), provides a detailed list of the factors I must consider in determining what is in the best interests of the children: 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 considerationthe child’s age 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 references, 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 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 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 co-operate 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 the Part would apply, (viii) the ability and willingness of each person in respect of whom an order under the Part would apply (

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

B) to communicate and co-operate 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 maintainingmeaningful 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 ofguardianship, and (xi) and civil or criminal proceedings that are relevant to the safety or well-being of the child. [40] Much of the evidence presented to me at the hearing of this application was not directed to the matters listed in FLA s. 18. The focus of the evidence often seemed to be on the wisdom of Ms. C’s decision to move to Hope, BC, which, except to the extent itrelates to the bests interests of the children, has little significance to this application.

It is not my role to consider the pros and cons of theproposed move and decide whether Ms. C’s decision to move to Hope, BC, is wise or foolish. [41] The question I must address was described by McLachlin J. (as she then was) in the Supreme Court of Canada in Gordon v.Goertz (SCC), [1996] 2 S.C.R. 27 as follows: In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location mustbe weighed against the continuance of full contact with the child’s access parent, its extended family and its community.

The ultimatequestion in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[42] I am required to assess, on the basis of the matters listed in FLA s. 18, whether the interests of the children would be betterserved by an order permitting Ms. C to continue as the primary care parent even though that would be in Hope, BC, and wouldsignificantly reduce the frequency of Mr. M’s parenting time, or by granting primary care to Mr. M and parenting time to Ms. C whichwould necessarily be limited given the distance between Hope and Edmonton. There is no third option. The present arrangement is notan option available to me, whether or not it is available to Ms.

C. [43] I note that in the course of cross examination, Mr. Slupek asked Ms. C whether she would stay if the court denies her requestto move to BC with her children. No objection was taken to the question, and I did not disallow it on my own initiative. I now realize Ishould have. The question was improper (see R.J.F v. C.M.F. (2014) 2014 ABCA 165 , 575 A.R. 125 (Alta C.A.) at para. 52and 53). It should not have been asked or answered. I have ignored Ms. C’s answer to it. Assessment [44] The evidence presented on this application fails to satisfactorily address several of the factors listed in FLA s. 18.

Inparticular: - The children have, at least allegedly, been sexually abused by an older cousin. They have lost all contact with their maternalextended family. There is no evidence before me as to the psychological or emotional consequences these developments have caused forthe children. Neither is there any evidence as to whether it serves the children’s best interests in the context of those psychological andemotional consequences, to move them 1000 kilometers away from the community in which the alleged abuse happened and theestranged maternal extended family members live.

Further, the psychological and emotional consequences for the children of thereduction of Mr. M’s parenting time frequency, if they move with their mother, or the change of primary parenting, if they do not, hasbeen largely left unaddressed. No explanation for the absence of this important evidence has been offered. (FLA s. 18(2)(

a) and (b)(i)) - The question of whether moving the children to Hope, BC, would enhance or harm the children’s connection with their aboriginalheritage has been left uncertain. Ms. C believes it would be enhanced. Mr. M believes it would be harmed. The evidence does notpermit me to come to any conclusion on that important point. (FLA s. 18(2)(b)(iii) - The children’s views and preferences are not addressed in the evidence except that Ms. C’s testimony indicated they wereenthusiastic about the proposed move and that Mr. M unfairly favors his older son and step daughter, which Mr. M denied.

Noexplanation for the absence of more fulsome evidence as to the views of the children was offered. (FLA s. 18(2)(b)(iv) - Ms. C’s plan is that she and her three children would live with DM and his two children together in Hope, BC. This grouping hasnot lived together up to the present. Ms. C testified that her children and DM get along well and that he participates in caring for themwhen he is staying at her place. DM did not testify, although he was listed as one of the witnesses proposed to be called and although hewas present in court on the second day of the application, after Ms. C’s evidence was complete.

No satisfactory explanation was givenfor his not testifying. Mr. Slupek submitted that I should draw an adverse inference as a result of DM not testifying. Because DM did not testify, the evidence relevant to the nature, strength, and stability of the relationship between the children and DMand each of his children was insufficient. Indeed, such evidence as was presented was to the effect that the relationship between Ms. Cand DM has frequently been very unstable. Ms.

C’s evidence that the relationship is not strong and stable is rendered questionable by herfailure to call DM or to give a reasonable explanation as to why she did not. (FLA s. 18 (2)(b)(vii) However, I decline to draw the adverse inference requested. In my view, resort to that feature of the adversary system is best avoidedwhen the court is attempting to determine the best interests of children. I rest with the observation that the evidence on an importantfactor required to be considered in that determination is not before me. - Similarly, Mr. M’s wife did not testify. Mr.

M’s, albeit weakly-developed, alternate plan – to have primary care of the childrenhimself – is therefore not supported by evidence relating to the nature, strength and stability of the relationship between Mr. M’s wifeand the children. The evidence regarding the relationship between the children and Mr.

M’s older son and his wife’s daughter wassimilarly underdeveloped. (FLA s. 18(2)(b)(vii) - Beyond the fact that there are criminal proceedings in progress against the cousin who allegedly sexually abused the children,evidence as to the relevance of those proceedings to the well-being of the children was not addressed and no explanation for that void inthe evidence was offered. (FLA s. 18(2)(b)(xi). [45] The evidence presented does not permit me to undertake consideration of many of the factors which FLA s. 18 requires me toconsider.

I have not been given the information required to determine whether the continuation of Ms. C as primary caregiver after hermove to Hope, BC, and the consequent changes to Mr. M’s parenting time are in the best interests of the children. Neither have I beengiven the information required in order to determine whether the only alternative, that primary care be transferred from Ms. C to Mr. M,

is in the children’s best interests. [ 46 ] In my view, the proper disposition at this point is to neither grant nor dismiss the application, but to offer the parties the opportunity to provide the required evidence or to explain why it cannot be provided. To that end, I adjourn the application sine die . Ms. C has leave to adduce further evidence on the FLA s. 18 factors. Mr. M similarly has leave both to apply for an order that he be granted primary care of the children should Ms.

C move to BC, and to adduce further evidence on the FLA s. 18 factors. [ 47 ] Before the application continues, counsel should contact my office to arrange to meet with me to discuss how the continuation of this application will be organized. Heard on the 9 th and 10 th days of June, 2016. Dated at the City of Edmonton, Alberta this 8 th day of July, 2016. B.R. Burrows J.C.Q.B.A. Appearances: Suzanne K. Dalton, C. Spafford for the Applicant Kenneth Slupek for the Respondent