GTD v KAW, 2016 ABQB 427

Court of Queen’s Bench of Alberta Citation: GTD v KAW, 2016 ABQB 427 Date: 20160808 Docket: FL03 31276 Registry: Edmonton Between: GTD Applicant/ Cross-Respondent - and - KAW Respondent/ Cross-Applicant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This is an application by GTD to adjust child support based on KAW’s actual income for 2014 and 2015, to allow RAD to move to Edmonton to live with her primarily, and to start kindergarten here.

She applied for, but has since abandoned, a claim for partner support. KAW cross-applies to vary the consent parenting order of March 20, 2014 to become the primary caregiver for the parties’ son, RAD. He seeks an order allowing RAD to be enrolled in kindergarten in Ponoka, where RAD has been living for the last two years. He also seeks to have his child support payments to GTD stopped. [ 2 ] These issues were argued at a Family Law Special chambers application before me. Background [ 3 ] The parties separated and were divorced in June, 2011. While together, they lived in Ponoka. RAD was born in September, 2011.

He is five years old. [ 4 ] Access was an initial problem, and the parties were in court over access a month after RAD was born. Initially, KAW had limited access, which was later increased. The March 2014 consent order provided that GTD was to have day-to-day care of RAD. KAW

was to have parenting time every second weekend from Thursday at 4:00 pm to Sunday at 5:00 pm, and on every second Tuesday at 4:00pm to Thursday at 9:00 pm. Holiday time was to be divided fairly. [5] The order stated: “The child shall attend school in Edmonton, Alberta, when he reaches school age, unless otherwise orderedor agreed to by the parties.” [6] Child support was based on GTD having primary care of RAD. KAW’s 2014 income was provisionally set at $75,000. Heagreed to pay 100% of daycare expenses. [7] KAW is employed through a corporation owned and controlled by him.

His 2014 income as set out in his tax return was$99,483.65, although GTD believes that he earns significant income from Ebay sales and that further income should be attributed to himfrom his corporation. [8] Disclosure has not been completed, and KAW had apparently not filed his 2015 income tax return by the time of theapplication. [9] At the time of the consent order, RAD was two and a half years old. That fall, GTD returned to school in Edmonton to take amedical technology program at NAIT.

Because of the demands of that program, the parties agreed that RAD would reside with KAW inPonoka from Sunday evening to Friday evening during the school year. Summers were shared week-on/week-off. [10] According to GTD, when her program requirements changes such that she was not in class on Fridays, she had RAD fromThursday evening until Sunday evening. This arrangement apparently ended when she made it known to KAW that she wanted to revertto the provisions of the March 2014 order and have RAD start school in Edmonton in the fall of 2016. [11] GTD graduated from the program in the spring of 2016.

She now has employment in Edmonton, and seeks to enforce theMarch 2014 court order giving her day-to-day care of RAD, as well as requiring that he start school in Edmonton. [12] As is not surprising in applications like this, the gloves have come off and the parties spent some time in their respectiveaffidavits criticizing the parenting skills and personalities of each other. [13] I do not intend to deal with those issues, as they are collateral to the questions I have to determine for the parties. I concludethat they are each fit and capable parents. They love their son and both are well-bonded with him.

Positions [14] KAW argues that RAD should not be removed from the life he has developed in Ponoka over the past two years, where he hasfriends and extracurricular activities. A number of KAW’s extended family members are in the Ponoka area. [15] GTD argues that the existing court order should be enforced, especially the provision that RAD go to school in Edmonton.GTD maintains that there has been no change in circumstances since the March 2014 order, and that the Court should not vary it. Shesubmits that KAW is alienating RAD from her, especially since this application was commenced.

She fears that if RAD remains inKAW’s primary care, the alienation will continue. Analysis [16] I am satisfied from the affidavit evidence that there has been a change in circumstances, enabling the Court to revisit theconsent order of March 2014.

There is nothing in the affidavit evidence before me to indicate that when the consent order was enteredinto, GTD and KAW had discussed GTD’s education plans or contemplated that she might stop work and take further post-secondaryeducation. [17] The decision that RAD would (despite the consent order) live primarily with KAW while GTD was at school came after theorder. [18] It is, of course, to the parties’ credit that they cooperated in enabling GTD to pursue an educational program that will provideher with an excellent career.

But the arrangements made by the parties reversed the parenting situation such that during the school year,KAW looked after RAD during the week and GTD saw him on the weekends.

Being raised from age three to five by his father in Ponokais vastly different from being raised by his mother in Edmonton. [19] Despite the court order, the new status quo as agreed by the parties had KAW as the primary parent. [20] That change in circumstances is significant, even though GTD’s own circumstances is now back in the position she was in atthe time of the consent order: able to look after RAD as the primary caregiver and employing daycare to accommodate her expectedwork schedule. [21] Because circumstances changed, however, I am satisfied that my analysis should proceed under the framework of Gordon vGoertz, (SCC), [1996] 2 SCR 27.

Law [22] The principles in Gordon v Goertz are well known. Where a change in circumstances from a previous court order has

occurred, the Court must consider what parenting arrangement will be in the best interest of the child. Para 49 of that case sets out the relevant considerations: (

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. [ 23 ] An unusual factor here is that the applications are brought under the Family Law Act , as the parties were not married when RAD was born. That brings into play the provisions of s 18 of that Act and its list of considerations to determine the best interests of the child. [ 24 ] The Act supplements, but does not detract from, the Gordon v Goertz factors. They are: (

i) the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the 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 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; (vii) the nature, strength and stability of the relationship between the child and each parent; (viii) the ability and willingness of each parent to care for and meet the needs of the child, and to communicate and cooperate on issues affecting the child; (ix) taking into consideration the views of the child’s parents, the benefit to the child of developing and maintaining meaningful relationships with each parent; (

x) the ability and willingness of each parent 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. [ 25 ] I dealt with a mobility application in BRH v RPS , 2016 ABQB 346 , and do not think the law has changed since my analysis there.

I would specifically reference, however, the Court of Appeal’s decisions cited in that case, which emphasize the need to pay careful attention to the bond between the child and the custodial parent. [ 26 ] That is clear from the Court of Appeal’s most recent decision on mobility, McAlpine v Leason , 2016 ABCA 153 .

There, the Court stated at para 6: This Court has repeatedly cautioned against approaching the best interest test by comparing the effect on children if they are permitted to relocate with the custodial parent versus maintaining the status quo (i.e. the children remaining with the custodial parent in their current location).

Approaching the issue in that manner ignores a key component of the Gordon v Goertz test – the effect of removing the child from the care of his or her primary caregiver after that parent moves. [ 27 ] That decision follows RJF v CMF , 2014 ABCA 165 , where the Court held that the trial judge had erred by “not considering or by failing to give adequate weight to, the relationship that existed between the child and his mother and the effect of removing the child from her primary care”. [ 28 ] I observe that it is difficult to determine the nature of the relationship between the parent who has primary care and the child where the Court is asked to decide the matter on the basis of conflicting affidavits.

That is the case here. [ 29 ] It may be in some cases, a chambers judge can determine the strength of that relationship by details in the affidavits as to the activities shared between parent and child, the time spent between the parent and the child and the responsibilities assumed by the primary parent. [ 30 ] In a case like this one, there was no evidence put forward other than by the parents, and there was no expert evidence as to the potential effects on the child of being removed from the primary care of his father.

[ 31 ] I do not think that this factor is one that creates a presumption in favour of the primary parent. It obviously must be considered and in many cases will be the determining factor. But I do not think that the effect of these decisions is to enable or require the trial or chambers judge to give little weight to the other factors. [ 32 ] Matters like this are best dealt with by a trial where the trial judge can assess the credibility of the parents and other witnesses and hear more fulsome evidence than is the case with opposing affidavits.

However, mobility matters are often urgent and cannot wait for a year or so to be set for trial. Wait times for special chambers are (for a half day) at least six months in Edmonton, so the Court must frequently decide difficult matters like this on conflicting affidavit evidence. [ 33 ] Judge Burch’s decision in Gordon v Shumka , 2016 ABPC 114 is a mobility decision in a Family Law Act situation. Her analysis of the facts of that case in the context of the s 18 factors is instructive.

Application to Facts [ 34 ] Some of the s 18 factors are not relevant: the views of the child, as he is too young to have any meaningful views; and family violence, as there is no suggestion that has occurred or may occur. [ 35 ] With respect to the other factors, despite the affidavits of the parties criticizing the other, GTD has been content for the past two years to have KAW look after RAD as his primary parent. KAW has been content to facilitate access between RAD and his mother.

I understand he has done most of the driving to ensure such access occurs. [ 36 ] Neither of the parents has put forward a detailed parenting plan, but I am satisfied that both are capable of caring for RAD appropriately and effectively. Both parents have done that over the course of RAD’s short life, and there is no reason to fear that will not continue to be the case. [ 37 ] From the history provided by the parties, I am satisfied that each is a capable, fit and loving parent.

RAD will do well whoever looks after him on a day-to-day basis. [ 38 ] GTD has suggested that RAD will do better with her in Edmonton because of the school system in Edmonton and by being surrounded by her well-educated family members. With respect, I do not think that good parenting and nurturing is better accomplished in urban environments, or by well-educated, professional parents. I have no reason to think that RAD would be disadvantaged in any meaningful way by living and going to school in Ponoka rather than in Edmonton.

I do not subscribe to any theory about parental education levels or occupations and parenting skills. [ 39 ] RAD is only five years old. He is starting kindergarten. It may be as he gets older that his interests and talents will be such that the educational and recreational amenities of a large city like Edmonton may be more conducive to his upbringing. That is an issue for another day and is not relevant to this application. [ 40 ] The significant factors here are twofold. First is the reality that RAD has spent the last two years of his life in the primary care of his father.

That is a factor that strongly favours the status quo. McAlpine v Leason clearly indicates that this factor is not to be undervalued. [ 41 ] Secondly, the information before me indicates that KAW has a lot of flexibility in his work schedule. He is the owner of a business. Other employees appear to do most of the actual work. KAW is able to arrange his day around his son’s schedule. He does not propose that his son would be in daycare or before- or after-school care. [ 42 ] GTD, on the other hand, will be working in her new profession, and will have less flexibility.

She will require a fair amount of daycare. [ 43 ] When choosing between fit, capable and loving parents, maximizing the time with the parents becomes a strong factor to consider. If in the primary care of his father, RAD will have more parental time and limited, if any, with daycare providers. [ 44 ] The reality for most separated parents is that daycare is necessary, regardless of which parent has primary care. While daycare may be fine, time with a fit and capable parent is better. [ 45 ] My conclusion is that the best interests of RAD at this time are to remain in the primary care of his father.

GTD will remain an access parent, with reasonable and generous access time. His father has had him in his primary care for the last two years. He has a strong bond with RAD. He has, for the past two years, been involved with KAW’s family in the Ponoka area. His life and activities have mainly been in Ponoka. [ 46 ] There is no doubt that RAD also has a good relationship and is well bonded with his mother, but she has been less involved with his day-to-day routines. Essentially, staying with his father is very likely to be successful as RAD transitions to school.

Moving to Edmonton with his mother and spending significant time in daycare may well work, but there is a risk to change that does not seem worth running at this stage in RAD’s development. [ 47 ] I have no doubt, although there was no specific evidence on this point, that it would be disruptive to RAD to move from the environment he has been in for the last two years. This is also a factor favouring the status quo. Access [ 48 ] Access was not specifically addressed, and before making any order dealing with GTD’s access, the parties should have an

opportunity to come up with a

schedule that will maximize GTD’s time with their son and equitably share school breaks. [ 49 ] I reserve jurisdiction to finalize an access schedule, should the parties be unable to agree. Support [ 50 ] GTD abandoned her claim for spousal or partner support. [ 51 ] RAD remained primarily with GTD from the time of the consent order until September 1, 2014. There is no reason why KAW should not pay child support for the first nine months of 2014 at the table amount on his tax return income of $99,483.65. [ 52 ] From September 1, 2014 until the present time, RAD has been primarily resident with KAW.

GTD did not suggest in this application that she had RAD with her more than forty percent of the time since September, 2014 although her time since the April 11, 2016 variation order gave her additional time. With a division of holiday time, her court-ordered access time is likely close to forty percent. [ 53 ] Regardless of that, even though RAD has been primarily with KAW for the past two years, KAW continued to make the child support payments required by the consent order to GTD.

He did not seek to vary the 2014 consent order, and did not seek any child support form GTD. [ 54 ] It appears that KAW recognized GTD’s financial need during her education period and indirectly satisfied some, if not all, of the partner support claim that may have existed at the time of separation. [ 55 ] In these circumstances, I do not see that KAW should be required to pay additional support to GTD for the period following September 1, 2014.

GTD abandoned her spousal support claim and in view of the changed circumstances regarding RAD’s primary care, no retroactive child support is appropriate. [ 56 ] GTD should commence paying child support as soon as she starts her new position in January, 2017 in the table amount specified in the Child Support Guidelines, and the parties should share proportionately any

section 7 expenses. [ 57 ] KAW should complete his required financial disclosure in a reasonable time from this decision. Alienation [ 58 ] I am concerned about GTD’s allegations that KAW is alienating RAD from her. Any alienation may be the result of the discord over this application, but if GTD wishes to pursue this issue, I would be disposed to order a Practice Note 7 intervention with an agreeable parenting expert to determine if there are any alienating behaviours occurring, and if RAD is alienated from his mother as she fears.

If that is found to be the case, I would expect the parenting expert to address recommendations for a further course of action to ensure that RAD has an appropriate relationship with both parents. [ 59 ] KAW has a significant income. GTD is in the final stage of her education program and has limited income. KAW has yet to complete his financial disclosure.

As a result of these factors, the cost of the intervention should be borne by KAW, in the first instance, with its costs ultimately in the discretion of the Court. [ 60 ] The results of the intervention may require that this decision regarding primary care be revisited. [ 61 ] Having ordered the intervention, I am seized with dealing with the results of it, so the report from the parenting expert should be directed to me as well as to counsel. Costs [ 62 ] I am not inclined to award costs in this matter.

There is mixed success, and while KAW has succeeded on the major issue surrounding parenting, he has not provided financial disclosure in a timely way. Observations [ 63 ] I observe that this would appear to be a situation where shared parenting may be the most advantageous arrangement for RAD.

GTD may have limited ability to live very far from her place of employment, and it does not appear that she has reasonable job prospects in the Ponoka area at this time. [ 64 ] KAW has greater flexibility in his schedule, and it might be possible for him to move closer to Edmonton while still being able to run his business in Ponoka.

Where there are two fit parents, who have been able to effectively parent their child together but for this recent issue, a collaborative approach may be in everyone’s best interests. [ 65 ] In the circumstances before me now, however, I am satisfied that RAD should stay with his father in Ponoka. [ 66 ] I am indebted to counsel for their able written and oral submissions. Heard on the 21 st day of June, 2016.

Dated at the City of Edmonton, Alberta, this 8 th day of August, 2016. Robert A. Graesser J.C.Q.B.A. Appearances: Marilyn Sheckter Legal Family Crisis Clinic for the Applicant/Cross-Respondent Adam Zibdawi Masuch Albert LLP for the Respondent/Cross-Applicant