Ralstin v Hupalo, 2016 ABQB 47

Court of Queen ’ s Bench of Alberta Citation: Ralstin v Hupalo, 2016 ABQB 47 Date: 20160202 Docket: 4803 154320 Registry: St. Paul Between: Jason James Ralstin Applicant/Plaintiff - and - Marianne Jeanette Hupalo Respondent/Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction and Overview [ 1 ] This is an application by Marianne Jeanette Hupalo (“Ms.

Hupalo”), filed on April 29, 2015, in which she seeks an order permitting her to move Isabella Lillian Hupalo (DOB June, 2007) to Edmonton, Alberta. She also seeks the costs of this application. Ms. Hupalo’s application is a cross-application to a Family Law Act application filed by Jason James Ralstin (“Mr. Ralstin”) on August 14, 2013, seeing to vary the order of Judge Demetrick of the Provincial Court of Alberta dated April 30, 2012. In his Application, Mr. Ralstin seeks primary parenting or, in the alternative, shared parenting of Isabella.

He also seeks to vary child support. [ 2 ] This matter proceeded by way of viva voce hearing in St. Paul, Alberta on August 25, 2015. At the conclusion of the evidence and the submissions of counsel on the mobility application, I dismissed Ms. Hupalo’s application with written reasons to

follow. These are my reasons for decision. [ 3 ] Mr. Ralstin’s parenting application was adjourned for continuation in Edmonton on September 22, 2015. After hearing the submissions of counsel on Mr. Ralstin’s application I allowed the application and directed that the parties share the parenting of Isabella on a 50-50 basis commencing immediately. At that time, I advised the parties that I would file written reasons at a later date. My reasons for decision are set out in Ralstin v. Hupalo , 2016 ABQB 48 , released contemporaneously with this decision. [ 4 ] Mr.

Ralstin’s application to vary child support was adjourned sine die . Background [ 5 ] The parties were in a common law relationship between 2003 and 2005. They briefly reunited in 2006, during which time Ms. Hupalo became pregnant with Isabella. The parents are both guardians of Isabella, who has always been in the primary care of her mother. [ 6 ] The parties have been involved in protracted litigation relating to Isabella, particularly as regards to the issue of access by Mr. Ralstin.

There have been a series of court proceedings relating to parenting and access, resulting in interim parenting orders dated January 6, 2010; March 3, 2010; September 1, 2010; July 6, 2011; February 15, 2012; February 15, 2012; March 7, 2012; April 30, 2012; and August 27, 2013. The order dated April 30, 2012, stipulates that Mr. Ralstin is to have access every second week-end and that the parents will split all holidays.

During the summer break, Isabella spends alternating weeks with each of her parents. [ 7 ] The order also provides that all communication between the parties is to take place via a communications book that is transferred by Isabella as she moves from one household to the other. The order further directs that the parents will comply with any recommendations flowing from Isabella’s attendance at play therapy. Isabella has been attending play therapy since July 2011. [ 8 ] Ms. Hupalo lives in Glendon, a small community of approximately 45 km. from St. Paul.

She has some relatives in Glendon, but most of her extended family lives in St. Paul. Ms. Hupalo operates a day home for six children from Monday to Friday between the hours of 6 AM and 5 PM. In addition, she works at a family run business as a baker 3 to 4 days a week from 5:30 PM until 9 PM, and every second weekend while Isabella is with her father. When Ms. Hupalo is working evening shifts, she leaves Isabella with her grandmother or an aunt or uncle. [ 9 ] Ms. Hupalo had the following income during the years 2011 to 2014 – $13,418 [2011]; $16,598 [2012]; $19,005 $54 [2013]; and $17,808 [2014].

In addition, she receives $631 per month in child support, though testified that she has not received child support from Mr. Ralstin since May 8, 2015. Due to the fact that her day home operates out of her residence, she is able to make income tax deductions for rent, utilities, taxes and some food, thus increasing her actual income. [ 10 ] Isabella attends Glendon school and is currently in grade 3. She is doing well in school and receives exemplary grades. She is not enrolled in any extracurricular activities in Glendon, though formerly participated in figure skating. Mr.

Ralstin has her enrolled in dancing in St. Paul. [ 11 ] Ms. Hupalo wishes to move to Edmonton with Isabella. She offered a number of reasons for this proposed move, including a desire to spend more time with Isabella. She indicated that she wants to be more financially independent and to not have to work two jobs. She testified that she could make more money in Edmonton by returning to her former occupation as a journeyman baker. She is having trouble making ends meet with her current jobs in Glendon and is “burning the candle at both ends”. According to Ms.

Hupalo, she has a number of cousins in Edmonton, as well as some friends, Carol and Jeff Campeau (Spruce Grove) and Erin and David Bond (Beaumont). In cross-examination, she acknowledged that she had not seen the Bonds in over a year. [ 12 ] Ms. Hupalo testified that she has wanted to move to Edmonton for a long time. She agreed that starting in 2011, she “probably” told Mr. Ralston that she was moving. She went on to indicate that every time she mentioned moving to Edmonton, Mr. Ralstin says “no”. [ 13 ] Ms. Hupalo readily acknowledged that Isabella loves her father and would like to spend more time with him.

She agrees that it would be beneficial for Isabella to spend time with him. She testified that she has no concerns while Isabella is in the care of her father, other than the fact that he is sometimes not at home during access visits. [ 14 ] Ms. Hupalo views the payment of child support as a serious issue with Mr. Ralstin. In particular, she testified that Mr. Ralstin pays on an inconsistent basis and that she cannot count on receiving it. She related that there was a 10 month period when he did not pay any child support because he could not afford it. Mr.

Ralstin denies that he is in arrears in terms of child support. His evidence is that, to his knowledge, he has not been in arrears for years. He checked the MEP website on the day of the trial and determined that he is fully up to date. [ 15 ] There is no evidence before me to support a conclusion that Mr. Ralstin is, in fact, in arrears in terms of child support. [ 16 ] Mr. Ralstin is a truck driver and heavy-duty mechanic by profession. He completed grade 10. His hours of work are 8:00 or 9:00 a.m. to 3:00 or 4:00 p.m. Monday to Friday. He had a line 115 income of $40,500 in both 2013 and 2014. [ 17 ] Mr.

Ralston was married on January 6, 2010 to his current wife, Lea. Together with their two children, as well as a child from Lea’s previous relationship, they reside on a small farm approximately 5 minutes outside of St. Paul. Lea is a stay-at-home mother. [ 18 ] Mr. Ralstin is the biological father of Isabella. He has been involved in Isabella’s life since her birth and used to go to see her every night after work when she was very young. [ 19 ] When Isabella is in Mr. Ralston’s care, she has her own room. The children, including Isabella, are involved in caring for a dog, a pony and rabbits at their home in St.

Paul. Isabella has a close relationship with Lea’s daughter Anika (aged 14), as well as her

half-sister Lexsia (aged 5). Mr. Ralstin and his wife also have a son born one week prior to the hearing of this matter on August 25, 2015. According to Mr. Ralstin, the children get along well but, like all siblings, they have their ups and downs. [ 20 ] As evidenced by his 2013 application currently before the court, Mr. Ralstin wants to have more time with Isabella. [ 21 ] Lea Ralstin has known Isabella since she was two years of age. She has been involved, along with her own children, in working with Isabella’s play therapist over the course of the past four years.

She described the three girls as sisters and that it is hard to tell them apart sometimes. She also indicated that she is prepared, indeed, willing to have Ms. Hupalo participate in the play therapy sessions with the others. [ 22 ] Mr. Ralston is also prepared to involve Ms. Hupalo in the session with the play therapist. The play therapist has recommended a session involving Isabella and all of her siblings, together with all of the parents. Unfortunately, this has proven difficult to arrange, and has not happened, given the communication difficulties between the parties. [ 23 ] In her evidence, Mrs.

Ralstin described a yelling incident the previous day outside the courtroom. She testified that Ms. Hupalo yelled at her to “shut her trap” during a conversation regarding alleged child support arrears. According to Mrs. Ralstin, Ms. Hupalo is always yelling at her, so much so that Ms. Ralstin’s children are afraid of Ms. Hupalo. [ 24 ] According to Mr. Ralstin, Ms. Hupalo has been threatening to go to Edmonton since September 2011. He testified that he believes Ms. Hupalo’s reasons for moving are to deprive him of any possibility of having a shared parenting arrangement.

He believes that he will lose time with Isabella if Ms. Hupalo is permitted to take her to Edmonton. [ 25 ] Mr. Ralstin believes that that the role he and his new family play in Isabella’s life is important to her, notably her close relationship with her “sisters”. He is afraid that this contact would be seriously reduced if she were to move to Edmonton. [ 26 ] On October 21, 2013, Clackson J appointed Alan J Kostyniuk, a parenting expert, to carry out a bilateral custody assessment under Practice Note 7, to assist the court in determining the parenting arrangement that would be in the best interests of Isabella.

Mr. Ralstin was directed to pay the cost of the bilateral assessment, subject to a determination by the trial judge as to how the parties should bear the cost of the process. Mr. Kostyniuk’s report was completed on September 30, 2014, but not released to the court or to the parties until January, 2015. [ 27 ] Mr. Kostyniuk was, unfortunately, unable due to personal reasons to participate in questioning relative to his report prior to the vive voce hearing. Nevertheless, the parties agreed to proceed with the viva voce hearing on the scheduled date. [ 28 ] Mr.

Kostyniuk’s report considered a number of factors, including

a) An assessment of the adults/caregivers’ capacities for parenting, including whatever knowledge, attributes, skills and abilities, or lack thereof, are present;

b) An appraisal of the psychological functioning and developmental needs of the child;

c) An evaluation of the functional ability of each parent/caregiver to meet these needs, including observations of the interaction between each parent and Isabella Dr. Kostyniuk’s Report, p. 3 [ 29 ] Mr. Kostyniuk made a series of recommendations, most notably that a shared or parallel parenting regime with minimal contact between the parties offered the best mechanism for Isabella to develop appropriately.

He concluded that they were both “capable parents and loving caregivers” (p. 63) who had the potential to minimize their history of conflict and to learn to put aside their own conflict and focus on their shared parenting responsibilities and the best interests of their child. [ 30 ] Mr. Kostyniuk also made a series of recommendations, including that the parties participate in a mediation process. He described this as a “crucial determinant” in terms of achieving a positive outcome. He recommended week on; week off shared parenting, with the continued dividing of holiday time between the two parents.

He went on to say that a system of parallel parenting would be the next best option if, for whatever reason, the parties were unable to manage a shared parenting regime. He further recommended that communication regarding Isabella should be limited to Ms. Hupalo and Mr. Ralstin and that they employ “My Family Wizard” as a tool to assist in sharing information and communicating, generally. He urged the parents not to use the parenting transition process as a forum for parental arguing and tension.

He recommended that exchanges would need to be handled through neutral third parties if the parents were unable to manage these processes themselves. [ 31 ] Mr. Kostyniuk concluded that neither parent suffered from any significant parenting deficits, but their interpersonal communication and cooperation relative to Isabella “are fraught with difficulties.” (Report, p. 57). He described the dynamic between them as Mr. Ralstin’s on-going efforts to discredit Ms. Hupalo’s parenting abilities to which she has repeatedly “retaliated with anger”. (Report, p. 57) [ 32 ] Further, the report recommended that Ms.

Hupalo “at the earliest opportunity” commence individual, outpatient psychotherapy, with a qualified mental health professional for the purpose of “acquiring and implementing effective anger management skills.” (Report, p. 71) [ 33 ] Ms. Hupalo told Mr. Kostyniuk, when presented with the results of one of the psychological tests administered during this process that it was “mainly true” that “sometimes her temper explodes and she completely loses control.” (Report, p. 54). At the same time, she related that her anger is directly solely at Mr.

Ralstin as a result of the financial cost of his court applications and “his continuing attempts to discredit her parenting.” (Report, p. 55)

[ 34 ] Ms. Hupalo told Mr. Kostyniuk that she felt increasingly frustrated and angry with Mr. Ralstin in the early years of exchanges involving Isabella and the continuing legal challenges. This culminated in an incident in June 2013, when Ms. Hupalo was charged with assaulting Mr. Ralstin with a weapon, a pair of boots. The charges were ultimately dropped but only upon Ms. Hupalo entering into a one-year peace bond on August 6, 2013, restricting any communication with Mr. Ralstin other than though legal counsel or through a third party in relation to access.

She testified that she entered into this on a voluntarily basis and that she has had no contact with Mr. Ralstin in the past year. [ 35 ] Mr. Ralstin enrolled Isabella in play therapy at his own expense several years ago as a result of the July 6, 2011 order of Judge Burgess in St. Paul Family Court. She had already attended approximately 25 psychological counselling sessions at the time of Mr. Kostyniuk’s report. According to Mr. Kostyniuk, both parents were provided with periodic updates.

Isabella’s counsellor reported that Isabella was attempting to “reconcile the differences between the two households” (Report, p. 53). In addition to conducting the bilateral assessment, Mr. Kostyniuk office, through Lloyanage Yaremko-Galas, provided individual counseling to Isabella, as well as joint sessions with her father and Ms. Hupalo, between July and October, 2011. [ 36 ] Mr. Kostyniuk recommended the continuation of Isabella’s play therapy sessions. Finally, he recommended that both parents, as well as Lea Ralstin, participate in the Focus on Communications course.

This recommendation has been complied with by all concerned. The Applicant’s Plan [ 37 ] Ms. Hupalo testified that she has an offer of employment to work as a baker at a Sobey’s store in Edmonton, though provided no confirmation of such employment. She would be paid $20 per hour and works a shift between 8:00 AM and 4:00 PM. She testified that Sobeys stores in Edmonton are open longer hours and thus have more shift options available for employees.

She testified that there may also be baker positions available at Safeway, Costco, Save on Foods, No-Frills, Extra Foods, and Superstore in Edmonton, though has not pursued other possible opportunities at any of these in-store bakeries. [ 38 ] Ms. Hupalo has not yet made any arrangements for housing in Edmonton, and is awaiting the outcome of this application before making any firm decision as to a residence. She expects that rent in Edmonton would be between $900 and $1200 per month.

She gave evidence that she may be eligible for a housing subsidy, though eligibility for this subsidy involves a one-year waiting period. She went on to state that she probably would not be eligible for the subsidy if she were working full-time at Sobeys. [ 39 ] Ms. Hupalo has not applied for a baking position at Sobey’s in St. Paul, or made any inquiries regarding the availability of similar work in either Bonnyville, Cold Lake or St. Paul. She acknowledged that she goes to Cold Lake on a regular basis and that it is an approximately 1 hour drive from her home.

She stated that she was not prepared to drive one hour each way to work. She claims that the hours of work at the Sobeys in St. Paul are not suitable as baking positions involve a 5 AM start time. She acknowledges that she worked for Sobeys in St. Paul as a baker from 2000 or 2001 to 2004, and that her hours of work at that point were usually 4 PM to 12 AM. She ceased work as a baker in January 2007, and opened her day home when Isabella was 6 months old. [ 40 ] Ms. Hupalo has obtained information about school options potentially available to Isabella in Edmonton.

Specifically, she has identified a Catholic school in Edmonton that she believes would be a good fit for Isabella given its focus on science programs. According to Ms. Hupalo, Isabella loves science and doing experiments. The school is a uniform school, has a lunch program, and offers both a before and after-school program. Ms. Hupalo is not aware of the costs associated with obtaining uniform items for Isabella, the cost of the lunch program, or the cost of before and/or after school care.

She stated that subsidies may be available to assist with such costs, but went on to express uncertainty whether she would be eligible for any subsidies on an anticipated salary of $40,000 per year. If successful in obtaining her preferred day-shift, she would only require before school, but not after-school, care. In cross-examination, she acknowledged that she has not had any discussions with Mr. Ralston about Isabella attending a science focused school. [ 41 ] Ms.

Hupalo described, in general, the benefits and opportunities she believes will be available to Isabella if living in Edmonton, notably the additional things to see and do. At the same time, Ms. Hupalo indicated that she intends to maintain contact with her immediate family in the St. Paul area through regular visits back to the community. She offered no specifics either regard. [ 42 ] She anticipates that she would not incur any moving costs as her parents would help her relocate. [ 43 ] If permitted to move Isabella to Edmonton, Ms. Hupalo indicated that she would be willing to meet Mr.

Ralstin halfway between Edmonton and St. Paul to facilitate his access weekends. She proposed that he continue to have access every second weekend and also offered Skype and FaceTime on a weekly basis. [ 44 ] Notwithstanding the uncertainties surrounding the outcome of her application, I am of the view that there are very significant gaps in Ms. Hupalo’s plan to relocate Isabella to Edmonton. She offered no information regarding inquiries she has made regarding medical and dental care.

Likewise, she provided no details as to any extra-curricular activities that may be available for Isabella, other than a general statement of support for the idea that additional opportunities would doubtless be available in a larger centre. She has no firm plans in terms of living arrangements and offered no confirmation of employment. Likewise, she offered no off-set to Mr. Ralstin’s monthly child support payments to reflect his increased costs to exercise access to Isabella. In general, I find that there is great uncertainty in terms of Ms.

Hupalo’s plan to care for Isabella in Edmonton, and note that she did not file any materials to demonstrate the efforts she has made to come up with a concrete, detailed plan. The Respondent’s Plan [ 45 ] Mr. Ralstin seeks primary parenting if Ms. Hupalo decides to move to Edmonton without Isabella. He says that his home provides a stable, loving and well-rounded environment for her. [ 46 ] If Isabella was to remain in the St. Paul area, Mr. Ralstin has developed a comprehensive plan as to how he would care for her on a full-time basis.

He and his wife Lea and their children live on a rural property outside of St. Paul. Isabella is very familiar with this home and enjoys spending time there with her father and the other children. She has developed a close relationship with Lea Ralstin and

the other children over the years. I was impressed by the evidence of both Mr. Ralstin and Lea Ralstin regarding the positive, loving environment that they have created in their home for all of the children. [ 47 ] Mr. Ralstin proposes that Isabella would go to the Catholic school in St. Paul, along with his other two daughters. As there is no Catholic school in Glendon, Isabella would have to go to St. Paul if she were to attend a Catholic school. (Both Ms. Hupalo and Mr.

Ralstin are Catholic and express a desire to have Isabella attend a Catholic school.) French immersion is also available at the elementary school in St. Paul. Before and after school care would be provided by his wife. [ 48 ] If Isabella were to come and live with him in St. Paul, Mr. Ralstin anticipates that she would continue her current extra- curricular activities, notably a dance program that she currently attends in St. Paul. He is strongly committed to supporting Isabella in her play therapy sessions, as well as other future extra-curricular activities. [ 49 ] All of Mr. Ralstin’s family is from St.

Paul and very involved in Isabella’s life. He is concerned how a move to Edmonton would impact on relationships with members of her extended family. [ 50 ] Mr. Ralstin confirmed that Ms. Hupalo has expressed concern with Isabella spending time at his home during access visits when he is not physically present. I accept Mr. Ralstin’s evidence that Ms. Hupalo’s concerns seem to relate to Isabella’s regular and frequent positive interactions with Lea and the other children living in the Ralstin home. [ 51 ] Mr. Ralstin believes that Ms. Hupalo wants to move to try and erase him from Isabella’s life.

He expressed considerable concern with respect to Ms. Hupalo’s plan to relocate Isabella to Edmonton and, in particular, all of the uncertainties as to where she would live and go to school. He stated: “why would you pull someone away from a whole family and move them into questionable circumstances surrounding low income housing.” [ 52 ] Mr. Ralstin testified that he does not support Isabella going to a science school in Edmonton. Ms. Hupalo has not discussed this aspect of her plan with him and he has no information about the school other than that it is a science school.

Analysis Has there been a material change in circumstances? [ 53 ] Has there been a material change in circumstance affecting the child? If this threshold requirement has been met, the court may embark on a fresh inquiry into the best interests of the children having regard to the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. [ 54 ] In this instance, I am satisfied that there has been a material change in circumstance since the date of the last substantive parenting order. Ms.

Hupalo’s proposed move to Edmonton would, in my view, have more than a minor impact on Mr. Ralstin’s contact with Isabella, with whom he has had regular and extensive contact since her birth. [ 55 ] Since the date of the last substantive parenting order, a PN-7 report has also been completed. The report provides significant insights into the abilities of both parents to provide Isabella with a loving and supportive environment. The report also describes the significant communication issues that exist between the parties, as well as the impact this is having on their parenting of Isabella.

This is information that was not available to the judge who made the last substantive parenting order. I am satisfied that the content of this report could well have had a significant impact on the decision reached at that point in time regarding Isabella’s best interests. [ 56 ] I am, accordingly, satisfied that the proposed move to Edmonton as well as the PN-7 report constitute material changes in circumstances. The Law [ 57 ] The leading case dealing with these sorts of mobility applications is Gordon v Goertz , a 1996 decision of the Supreme Court of Canada.

This decision has been interpreted and applied by the Court of Appeal on numerous occasions, including RJF v. CMF , 2014 ABCA 165 . In an earlier decision, MacPhail v. Karasek , 2006 ABCA 238 , the Court stated at paras. 32-33: The essence of the custodial test was described by McLachlin J. (as she then was) at para. 50 of Gordon : In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community.

The ultimate question in every case is this: what is in the best interests of the child in all of the circumstances, old as well as new? [ 58 ] In MacPhail , the Court concluded that the Learned Trial Judge had erred in refusing the Mother’s application to move the children to Okotoks from Medicine Hat in that he failed to assess the effect of removing the child from his Mother’s care.

Specifically, the Court of Appeal held that the trial judge should have assessed “the extent to which the child had bonded with the Mother, and the effect the separation might have upon the child as a result of the Mother becoming simply an access parent” (at para. 33). In RJF , the Court of Appeal found that the Trial Judge made a similar error, as described at para 31. [ 59 ] The focus of the inquiry in these types of mobility applications is the best interests of the child and not the interests and rights of the parents. [ 60 ] There is no legal presumption in favour of the custodial parent, in this case Ms.

Hupalo. However, the custodial parent’s views are entitled to great respect. In these kinds of cases, both parents bear the evidentiary burden of demonstrating where the best interests of the child lie. [ 61 ] The Supreme Court in Gordon v. Goertz identified the following factors to be considered:

a) the existing custody arrangement and the 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 exceptional cases 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; and

g) disruption to the child consequent on removal from family, schools and the community he or she has come to know. [ 62 ] In the end, the importance of the child remaining with the parent to whose custody he or she has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, his or her extended family and the community.

To re-iterate, “[T]he ultimate question in every case is this: what is in the best interests of the child in all of the circumstances, old as well as new?” ( Gordon , at para. 50) The existing custody arrangement and the relationship between the child and the custodial parent [ 63 ] Isabella has spent her entire life in the care of her Mother. She has been the primary parent since the date of birth. Since shortly after Isabella’s birth, she has worked full-time from her home and, as such, has been available to provide before and after school care.

Until recently, she facilitated Isabella’s participation in figure skating in their home community. [ 64 ] The relationship between Ms. Hupalo and Isabella appears to be very close and strong. The Respondent raises no concerns about her parenting. I am satisfied that she is a good mother and that Isabella has been well cared for. [ 65 ] Ms. Hupalo’s parents and other immediate family members, currently live in Glendon and have, on the evidence before me, a close relationship with Isabella. The support and assistance they currently provide to Ms.

Hupalo in terms of helping to care for Isabella will obviously be significantly diminished if Ms. Hupalo is permitted to take Isabella to Edmonton. [ 66 ] I am satisfied that Ms. Hupalo understands and accepts the principle that Isabella benefits from having a close and loving relationship with her father. As more fully set out below, I perceive that there is, unfortunately, a rather substantial gap between Ms. Hupalo’s good intentions and her actions in actually fostering this type of relationship. [ 67 ] I am concerned that Ms. Hupalo has very limited existing support in Edmonton.

On the evidence before me, I also have some concerns that Ms. Hupalo was less than fully candid and, indeed, exaggerated, the extent of the network of friends that she testified live in the Edmonton area. The existing access arrangement and the relationship between the child and the access parent [ 68 ] Mr. Ralstin has had regular access with Isabella since birth. He is a devoted father who has consistently expressed his desire to spend more time with Isabella, most notably through his various court applications over the years. He is well settled in the St.

Paul area and has a new wife with whom he has two other children. He has a history of stable employment, though this has recently been impacted by the downturn in the economy. [ 69 ] Isabella spends every second weekend with her Father from Friday after school until Monday evening. As such, she spends three nights out of every fourteen with her Father. He drives her to school and picks her up after school when she is in his care. Holidays are shared on a roughly 50/50 basis between the parents. Mr. Ralstin is very involved in Isabella’s activities, particularly, her dance classes.

He has clearly taken the initiative in terms of enrolling Isabella in play therapy and ensuring that she continues to attend. He demonstrates very good insight in terms of recognizing the impact on Isabella of the on-going conflict between her parents. In addition to spending more time with his daughter, Mr. Ralstin has also expressed a strong desire to be more involved in Isabella’s life by attending parent-teacher interviews, and other school activities. [ 70 ] The Ralstin family also includes a daughter from his wife’s previous relationship. On the evidence before me, it is clear that

Isabella has close relationships with her half-sister and Lea Ralstin’s daughter from a previous relationship. Mrs. Ralstin is a stay-at- home mother and impressed me as a devoted parent who has developed a strong relationship with Isabella over the years that they have known one and other. The recent addition of a half-brother obviously presents further opportunities for Isabella to develop loving relationships with siblings. [ 71 ] Mr. Ralstin was born and raised in the St. Paul area. His extended family all reside in the area. They have a close and supportive relationship with Isabella. [ 72 ] Ms.

Hupalo acknowledges that Mr. Ralstin is a devoted parent and has a close relationship with Isabella. She also acknowledges that Isabella would like to spend more time with her Father. The desirability of maximizing contact between the child and both parents [ 73 ] Both parents acknowledge the significant role that the other parent and his or her extended family play in the life of Isabella. [ 74 ] It is, of course, important for a child to have as much contact as possible with both parents.

In the event that Isabella were to move to Edmonton, I am satisfied that the opportunities for her to be with her father will diminish. There would be opportunities during bi-weekly weekend access visits, as well as during school holidays, but regular access will be rendered somewhat more difficult for the access parent, as will his ability to participate in Isabella’s school and extra-curricular activities. If she were to move to Edmonton, the centre of Isabella’s life will shift to that community. Mr.

Ralstin will obviously not be a part of this new community. [ 75 ] Under this category, it is appropriate to consider the extent to which each parent is prepared to encourage and facilitate the child’s contact with her other parent. [ 76 ] Mr. Ralstin did not specify how he would facilitate regular access to Isabella by Ms. Hupalo if she were to become the access parent. However, I am satisfied that as a long-time access parent himself, Mr. Ralstin understands the importance of a child maintaining close and loving relationships with both parents. On the evidence before me, there is no suggestion that Mr.

Ralstin has ever failed to comply with the terms of any access order. On the contrary, I find that he has consistently demonstrated respect for Ms. Hupalo’s role as the primary parent, even in circumstances where his access to his daughter was reduced or otherwise challenged. [ 77 ] I note that Mr. Ralstin’s history as an access parent reveals a great deal of flexibility on his part. He has also demonstrated, in my view, great flexibility in terms of his plan to share parenting of Isabella with Ms. Hupalo.

While the issue of shared parenting does not arise on this mobility application, with the consent of both parties, it was agreed that I should hear all of the evidence relevant to both applications. For the purposes of this application, I simply note that this same parenting flexibility is demonstrated in his overall approach to a possible shared parenting arrangement. This is more fully described in the companion decision, Ralstin v. Hupalo , 2016 ABQB 48 . [ 78 ] I am satisfied that Mr. Ralstin would ensure that Ms. Hupalo had regular access and contact with Isabella if Ms.

Hupalo were to become the access parent. I reach this conclusion on the basis of his demonstrated flexibility to date in terms of parenting and access arrangements, together with his understanding of the importance of children having strong and loving relationships with both of her parents. [ 79 ] I have some concerns regarding Ms. Hupalo’s evidence that she is committed to providing regular access to Mr. Ralstin if she is permitted to take Isabella to Edmonton. I am satisfied that Ms. Hupalo’s motive for wanting to relocate with Isabella to Edmonton is to add some distance between herself and Mr.

Ralstin and to reduce his involvement in Isabella’s life. [ 80 ] It is clear on the evidence before me that there is a very strained relationship between Ms. Hupalo and Mr. Ralstin. Many manifestations of this strain were revealed during the course of the trial. According to Mr. Ralstin, his experience is that his access to Isabella is always on Ms. Hupalo’s terms even in the face of court orders. [ 81 ] I found Ms. Hupalo to be a somewhat hostile witness, particularly during cross-examination when confronted with events that portrayed her in a less than favourable light. She was frequently rigid and defensive.

Further, her evidence was frequently marked by outbursts of anger, consistent, in my view, with other evidence describing instances of hostile behaviour directed towards Mr. Ralstin and his wife. On a number of occasions she was very tearful and quite overcome by her own emotions. [ 82 ] Ms. Hupalo is clearly angry with Mr. Ralstin for a number of reasons, including her perceptions regarding his unfulfilled child support obligations and his repeated efforts over the years to gain additional access time to Isabella. I am also of the view that Ms. Hupalo is jealous of Mr.

Ralstin’s new life with Lea and the other children, and fearful that the opportunities available to Isabella through her contact with her other family will weaken Ms. Hupalo’s own bond and connection with Isabella. It is also very clear to me that Ms. Hupalo harbours deep resentment towards Lea Ralstin, no doubt as a result of her fears that she is being “replaced” as Isabella’s mother. In this regard, it was noteworthy that Ms. Hupalo claimed to have no knowledge of Isabella’s activities while in her father’s care. Likewise, she expressed no interest in seeing Mr.

Ralstin’s residence or seeing how Isabella lives while in his care.

[ 83 ] In cross-examination, Ms. Hupalo conceded that she has not written in the court-directed communications book that is transported by Isabella between her two parents since “probably April”. She also conceded that there have been a number of times when she has not complied with court orders, notably in relation to Mr. Ralstin’s access time with Isabella. She acknowledged that email communication between herself and Mr. Ralstin would not work. She maintained that she tells him what he needs to know. [ 84 ] Mr. Ralstin has experienced difficulty in obtaining information from Ms.

Hupalo regarding medical and dental appointments and, most particularly, information from Isabella’s school. He believes that Ms. Hupalo is intentionally withholding this information. He points to the fact that the information Ms. Hupalo provided to the school as part of her registration package for the 2015-2016 school year did not include Mr. Ralstin’s contact information. (Ex. #1).

In cross-examination, while acknowledging that he was not previously aware of the Glendon school’s on-line newsletter, he testified that he has never been sent copies of Isabella’s report cards or copied on any emails from the school. [ 85 ] I am satisfied that Ms. Hupalo’s refusal to provide information to Mr. Ralstin is about “control” and trying to limit Mr. Ralstin’s involvement in Isabella’s day-to-day life. I would, however, note that Mr. Ralstin’s difficulties in obtaining information from the Glendon School also appears to be in part due to his own difficult relationships with school officials.

While I am persuaded that Ms. Hupalo must bear a good deal of the responsibility for the poor relationship with Mr. Ralstin, this is, admittedly, a complex dynamic between the two of them. Mr. Ralstin has clearly contributed to the situation. [ 86 ] Ms. Hupalo claims that Isabella has come home from time spent with her father and repeated things that Mr. Ralstin and Leah have apparently said, including that Ms. Hupalo is fat, ugly, useless, and good for nothing. Ms. Hupalo finds this to be very hurtful. While I have reservations as to whether or not such statements were actually made, I am satisfied that Ms.

Hupalo believes that these comments accurately reflect the views of Mr. Ralstin and Leah. Further, Ms. Hupalo claims that she has no relationship with Mr. Ralston as “he hates me” and goes on to say that she has no feelings for him. She testified that she does not trust Lea 100%. She was uncertain if there was anything that could be done to improve her relationship with Lea. She conceded that while attending court the previous day, she yelled at Leah “to shut her trap” during a discussion outside the courtroom regarding alleged child support arrears.

She also expressed concerns that Isabella is hearing things at her father’s home that she ought not to be exposed. She conceded, however, that she did not raise any of these concerns in any of her dealings with Mr. Kostyniuk. When asked why she had not raised any these issues, Ms. Hupalo responded that she was scared. [ 87 ] While I have some sympathy for Ms. Hupalo’s anxieties and concerns in this regard, this behaviour is damaging to Isabella who will, I fear, come to resent Ms. Hupalo’s hostility towards Mr. Ralstin and Isabella’s new family. I am satisfied that if this continuing behaviour goes unchecked, Ms.

Hupalo’s strong relationship with Isabella – the thing that she clearly values most in the world – will deteriorate. Mr. Kostyniuk’s strong recommendation that Ms. Hupalo immediately obtain out-patient psychological assistance to deal with anger management is, in my view, based on this same concern. [ 88 ] I am troubled by the fact that Ms. Hupalo has not pursued Mr. Kostyniuk’s recommendation regarding anger management and therapy. Notwithstanding that his report was released to the parties in January, 2015, Ms. Hupalo’s first appointment with a therapist is not until September 8 th .

I do not accept her explanation that this was the first appointment that was available. With respect to the recommendation generally, Ms. Hupalo testified that it makes her feel weak that she has to go and see someone regarding these issues. She stated: “I’m the Mom and I am supposed to be strong and I’m not.” What I take from this comment is that a combination of fear and pride has become an obstacle for Ms. Hupalo to take positive steps to try and improve her parenting skills and her overall approach to “managing” communications and her relationship, with Mr. Ralstin. [ 89 ] I am also concerned by Ms.

Hupalo’s seeming lack of engagement and participation in Isabella’s longstanding play therapy. She offers what amounts, in my view, to a series of excuses for her failure to contact the play therapist for information or updates in terms of how Isabella is doing. Somewhat paradoxically, she testified that she does not entirely agree with the need for play therapy as she perceives no difficulty in the current parenting arrangement. According to Ms. Hupalo, there is no fighting between herself and Mr. Ralstin, and Isabella appears to be happy to spend time with both parents. Ms.

Hupalo also says that she has never been contacted by the play therapist and, as such, does not know the purpose or outcomes achieved to date. In cross-examination, she conceded that she has never made any attempt to contact the therapist, either by telephone or email, but later stated that she would contact the play therapist “when she has time”. She conceded that she has made no inquiries regarding the availability of play therapy in Edmonton. [ 90 ] The serious issues described above reveal that Ms.

Hupalo is a troubled, frightened, and angry parent struggling to maintain control of the current parenting arrangement. Her conduct is that of a hostile parent who is struggling to hang on to her child. While doubtless unintentional, her behaviour is detrimental to the child’s relationship with her other parent. In my view, allowing her to take Isabella to Edmonton will do nothing to improve her toxic relationships with Mr. Ralstin and his wife Lea. The views of the child [ 91 ] In his report, Mr.

Kostyniuk noted that Isabella told him that “Lea told me to say I want more time at Dad’s” and that she wanted “seven days at Mom’s and seven days at Dad’s” (Report, p. 51) Lea subsequently told Mr. Kostyniuk that she did not give Isabella any such instruction. [ 92 ] It seems clear to me that Mr.

Kostyniuk, while noting this expressed preference, took note of Isabella’s age, level of development and limited literacy skills and that fact that “it is unlikely that she fully and accurately comprehends the current and future ramifications of the present dispute between her parents.” (Report, p. 52) [ 93 ] I share Mr. Kostyniuk’s view that, given her age, any views that might be expressed by Isabella are not a significant factor in this instance.

The custodial parent’s reason for moving, only in exceptional cases where it is relevant to that parent’s ability to meet the needs of the child [ 94 ] In most mobility applications, this is not a relevant factor in the determination of the issue. The Court of Appeal has directed in a number of cases that a parent’s reasons for moving is not a factor to be taken into consideration in mobility applications. [ 95 ] This is, however, one of those rare cases where the parent’s reasons for moving is a relevant consideration. While I accept Ms.

Hupalo’s explanation that she has a number of reasons for wanting to relocate to Edmonton, I am satisfied that a significant part of her motivation in moving is to limit Mr. Ralstin’s access to his child and, indeed, his involvement in her life. I find that she is an insecure parent in the sense that she is insecure in her own relationship with Isabella and fearful of losing Isabella’s attachment and love. [ 96 ] I have some significant concerns about Ms. Hupalo not being a “friendly” parent in terms of fostering Isabella’s relationship with her father and, through him her new family. I accept Mr.

Ralstin’s evidence that Ms. Hupalo has, for a number of years, used the prospect of a move to Edmonton as a “weapon” to try and exert or maintain control of Mr. Ralstin’s contact with Isabella. I also accept his evidence that Ms. Hupalo has limited his involvement in Isabella’s school activities and other appointments by failing to keep him informed. [ 97 ] The effect of all of this is to limit the opportunities that Mr. Ralstin has to become more involved in Isabella’s life. I am also satisfied that Ms.

Hupalo’s controlling behaviour has limited Isabella’s opportunities to be part of her new family on her Father’s side, including relationships with two female siblings, one older and one younger, and a new baby brother. [ 98 ] I am satisfied that Ms. Hupalo’s reasons for moving would directly impact on her ability to meet the needs of the child, specifically maintaining maximum contact between the child and her father. On the contrary, I am of the view that Ms. Hupalo would use the move as a means to erode or limit Mr. Ralstin’s contact and access to Isabella.

Disruption to the child of a change in custody [ 99 ] Isabella has spent her entire life in the care of Ms. Hupalo. She has been the primary parent her entire life. There would be a significant disruption in her life if Ms. Hupalo was to move to Edmonton and Isabella remained in St. Paul with their father. It is important to recognize the significance of Isabella’s relationship to her mother and the impact on Isabella of Ms.

Hupalo ceasing to be her primary care-giver. [ 100 ] While the loss of very frequent contact with her mother would involve significant disruption to Isabella, she has had regular and frequent contact with Mr. Ralstin since birth and has regularly spent time in the home that he shares with his wife Lea and the other children in their family. Both Mr. Ralstin and his wife Lea are loving, devoted parents and could provide Isabella with a stable and happy home. [ 101 ] In either of the options available in this instance, Isabella will be required to change schools.

If she is to move to Edmonton with her mother, she will obviously be leaving the Glendon school she has attended since the start of her formal education. Likewise, if she is to go to live with her father on a full-time basis in St. Paul, this will also involve a switch in schools from the Glendon school to an elementary school in St. Paul. Disruption to the child consequent on removal from family, schools and the community she has come to know. [ 102 ] Isabella has spent her entire life in the St. Paul area.

While she has one aunt who resides in Edmonton, virtually all of her other life “connections”, including family and friends are centered in and around St. Paul. Her school and all of her activities are also based in Glendon and the St. Paul area. As such, a move to Edmonton will represent very significant change in her life. [ 103 ] Ms. Hupalo testified that she plans regular visits to Glendon/St. Paul to maintain relationships with family and friends. Given that Isabella will, according to Ms. Hupalo’s plan, be spending every other weekend and one half of all school holidays with her Father in St.

Paul, additional trips to the area to spend time with her Mother’s extended family will potentially limit opportunities to participate in extra-curricular activities and develop new relationships in Edmonton. However well-intentioned Ms. Hupalo may be in this regard, I am left with a lingering concern about the disruption to Isabella’s life brought about by a move to a new community, particularly if

circumstances do not afford her a reasonable opportunity to develop a strong and stable support network in that new community. [ 104 ] I am not satisfied that Ms. Hupalo fully understands the significance of a move to Edmonton on Isabella and the resulting disruption to her life. I find that Ms. Hupalo’s plan relative to her requested move to Edmonton is tentative at best. I am not satisfied that she has taken sufficient care to minimize the disruption and ensure a smooth transition for Isabella if she is permitted to move Isabella to Edmonton. [ 105 ] I also have grave reservations as to the sincerity of Ms.

Hupalo’s commitment to continuing the current access arrangement for Mr. Ralstin, particularly her willingness to assume 50% of the driving responsibility given her history of requiring Mr. Ralstin to assume responsibility for all of the transportation. In the result, I am satisfied that there is good reason to fear that the most significant consequence of Isabella leaving the St. Paul area will be the reduction in the time she actually spends with their Father.

While a move to Edmonton could still allow for periodic access and regular skype, telephone and email communication, the reality is that she will see her Father less frequently. The other reality is that distance will disrupt his active involvement in her daily life and activities. [ 106 ] Furthermore, it seems inevitable that Isabella will develop new friends and new activities in Edmonton. As she gets older, she will likely have part-time and/or summer jobs in Edmonton which will place further practical limitations on her time with their Father.

Some of these life changes can be addressed, at least in part, through access visits that take place in Edmonton. However, over time, her links and/or connections to the St. Paul area will diminish as they are replaced by new friends and new activities in Edmonton. Conclusion [ 107 ] This decision requires a difficult balancing of all of the factors to decide what is in the best interests of the child. The father and mother are both loving and dedicated parents.

Isabella is close to both parents. [ 108 ] In balancing all of these factors, I conclude that it would be in the best interests of Isabella that she remain in the St. Paul area and that Ms. Hupalo should not be permitted to relocate her to Edmonton. I come to the conclusion for the following reasons:

a) While the views of Ms. Hupalo are entitled to great respect, I conclude that one of the principle reasons for wanting to relocate Isabella to Edmonton is to create geographic distance between Isabella and her father with a view to reducing the frequency and quality of contact.

b) While acknowledging that it would be a major disruption for Isabella to stop living with Ms. Hupalo on a full-time basis, or to be geographically separated from her, it would also be disruptive for her to be removed from the only community she has ever known.

c) I am not satisfied that Ms. Hupalo has made adequate plans to ensure that Isabella will continue to live in a stable and loving home and that all of her needs will be met. While the proposed move appears to offer new and improved employment opportunities for Ms. Hupalo, her plan lacks detail and certainty as regards to where she and Isabella will live, what educational opportunities exist and how she will continue Isabella’s current extra-curricular activities and, most important, the play therapy recommended by Mr. Kostyniuk. In my view, it is not in Isabella’s best interests to be moved to Edmonton in the face of uncertainty and so many unknowns.

d) I am satisfied that the move will cause a major disruption in the father’s access, both present and future. The very significant difficulties that Mr. Ralstin has encountered in the current access arrangements will not somehow improve if Isabella is in Edmonton. I am concerned that Ms. Hupalo’s proposed role in meeting Mr. Ralstin half way between St. Paul and Edmonton to facilitate weekend access will simply create a new forum for poor communication and conflict that will further complicate an already difficult situation.

e) This is not a situation where the father is either financially or generally able to visit Isabella in Edmonton on any sort of regular basis. He has a full-time job and significant family responsibilities in St. Paul that would render it difficult for him to make trips to Edmonton. Conclusion [ 109 ] The Application is dismissed. The Applicant, Marianne Hupalo, is not permitted to move Isabella from Glendon, Alberta to Edmonton, Alberta. Heard on the 25 th day of August, 2014. Dated at the City of Calgary, Alberta this 1st day of February, 2016.

M. David Gates J.C.Q.B.A. Appearances: Ms. Darlene St. Jean for Mr. Ralstin Mr. D. Kolinsky for Ms. Hupalo