DBF v BF, 2016 ABQB 484

Court of Queen’s Bench of Alberta Citation: DBF v BF, 2016 ABQB 484 Date: 20160830 Docket: 4801 145426 Registry: Calgary Between: DBF Plaintiff - and - BF Defendant Corrected judgment: A corrigendum was issued on November 2, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice G.A. Campbell _______________________________________________________ Table of Contents I. Introduction . 4 II. Inadmissible Documents . 4 III. Factual Background . 5 IV. Mobility . 9 a.

Facts . 9 i. Parenting Arrangements: From Separation to Trial 9 ii. Travel to Turkey . 11

iii. TP’s Circumstances . 14 iv. Professional Assessments of TP . 14 v. Proposed Parenting Plans . 18 b. Guiding Legal Principles . 20 c. Application of Law to these Circumstances . 22 i. The Existing Custody Arrangement and Relationships . 23 ii. Maximizing Contact between the Child and Both Parents . 24 iii. The Views of the Child . 26 iv. Reasons for Moving . 27 v. Disruption to the Child with a Change in Parenting Arrangements . 27 vi. Conflict in the Parties’ Relationship . 28 d. Conclusions on Mobility . 29 V. Custody and Access . 30 VI. Review 31 VII. Lycée or Elboya School 32 VIII. Support 32 a.

Positions of the Parties . 32 b. The Parties’ Incomes . 33 i. Guiding Legal Principles . 33 ii. Mr. F’s Income . 34 iii. Ms. F’s Income . 38 c. Child Support 44 i. Retroactive Child Support 44 ii. Ongoing Child Support 45 iii.

Section 7 Expenses . 45 d. Spousal Support 46 i. Entitlement 46 ii. Ongoing spousal support 48 iii. Duration . 49 iv. Retroactive spousal support 50 v. Conclusions on Spousal Support 51 IX. Division of Matrimonial Property . 51 a. Guiding Legal Principles . 51 b. The Property . 52 i. Pera . 52 ii. Registered Retirement Savings Plan (RRSP) 54 iii. Volvo Vehicle . 54 iv. Joint Line of Credit 55

v. Registered Education Savings Plan (RESP) 56 vi. Capella & Auriga . 56 vii. Post-Separation Debt 56 viii. The MW Home . 56 c. Conclusion on the Division of Matrimonial Property . 57 X. Costs and Other Matters . 57 I. Introduction [ 1 ] This is an action for corollary relief under the Divorce Act , RSC 1985, c 3 (2nd Supp) [ Divorce Act ], including custody and access, child and spousal support, and the division of matrimonial property under the Matrimonial Property Act , RSA 2000, c M-8 [ MPA ]. The parties were divorced in July 2015.

The most difficult issue for determination in this trial is whether it is in the best interests of the only child of the marriage, TP, to move with her mother, DBF (“Ms. F”), from her home city of Calgary, Alberta to live permanently in Istanbul, Turkey. II. Inadmissible Documents [ 2 ] Prior to delving into the facts of this case, I wish to comment on an evidentiary issue that arose on the first day of this trial. [ 3 ] On October 16, 2013, Justice Nixon, the case management justice, issued a procedural order that required Ms. F to provide BF (“Mr.

F”) with a copy of her proposed Exhibit Book no later than 10 days prior to the commencement of trial. Mr. F then had five days to provide Ms. F with a list of additional exhibits and to advise of any objections he had to any of Ms. F’s proposed exhibits. [ 4 ] Unfortunately, Ms. F did not comply with these court ordered deadlines. [ 5 ] On the first day of the trial, Ms. F sought to admit into evidence eight six-inch binders containing hundreds of documents. Mr. F’s counsel advised the Court that she had received Ms. F’s documentary exhibits on the morning of the first day of the trial. Mr.

F’s counsel also advised that she had not had time to review the voluminous documents or to prepare and provide Mr. F’s documentary exhibits in response. As a result, Mr. F’s counsel would not consent to the admission of any of Ms. F’s documents. [ 6 ] In the interests of the efficient use of trial time and trial time allotted, I ruled that the entire contents of all eight binders would be entered into evidence on the understanding that each and every document would have to be properly proved as admissible before I would consider it as evidence.

Any document that was ruled inadmissible or not proved would be removed from its binder and would not form part of the evidence. The same ruling applied to the three exhibit binders later entered into evidence by Mr. F. [ 7 ] Many documents were ruled inadmissible or were not proved during the trial (the “Inadmissible Documents”). At the conclusion of the parties’ evidence, which occurred late in the afternoon on the last scheduled day for trial, there was insufficient time to review and remove the Inadmissible Documents from the evidence.

The parties were asked to consult with each other and provide the court with a list of Inadmissible Documents that they believed should be removed from the evidence. [ 8 ] In correspondence to the court dated December 14, 2015, and copied to Ms. F’s counsel, Mr. F’s counsel stated that she had identified the Inadmissible Documents she believed needed to be removed from Ms. F’s exhibit binders, but that she had not received any response from Ms. F’s counsel. Mr.

F’s counsel suggested the removal of the following documents: • Exhibit Binder #7 (being the binder marked 6 of 8) – all of the documents located behind Tabs 61, 75, 81 and 85; • Exhibit Binder #8 (being the binder marked 7 of 8) – all documents located behind Tabs 99, 102, 103, 104 and Ms.

F’s typed notes regarding the calendars behind Tab 105; and, • Exhibit #9 (being the binder marked 8 of 8) – the entire binder, with the exception of the email dated June 8, 2014 regarding Lycée Louis Pasteur School. (Collectively, these documents are referred to as the “Proposed Inadmissible Documents”). [ 9 ] I reviewed the Proposed Inadmissible Documents. They are documents that either were ruled inadmissible or were not proved as admissible. In the result, the Proposed Inadmissible Documents do not form part of the evidence considered in this trial and are removed from the record. III. Factual Background

[ 10 ] The Plaintiff mother, Ms. F, is the former wife of the Defendant father, Mr. F. [ 11 ] Ms. F was born and raised in Ankara, Turkey. Ms. F was 44 years old at the date of trial. She is a Turkish and Canadian citizen. She is fluent in the Turkish language and proficient in speaking and writing in English. She also has some proficiency in the French language. [ 12 ] In 1991, Ms. F graduated from Bilkent University in Ankara with a degree in Hospitality Services. After graduation, Ms.

F worked at the Ankara Business Centre (Core Resources Management) as a human resources (“HR”) specialist, responsible for employee search, selection and placement. In 1993, Ms. F formed a HR consulting firm with a partner. After her partner left, Ms. F started her own HR consulting firm, Capella & Auriga. Ms. F operated Capella & Auriga until moving to Calgary in January 2003. [ 13 ] Mr. F was also born in Ankara, Turkey. His mother is English and his father is Turkish. He was 46 years old at the date of trial. [ 14 ] Mr. F moved with his family to Canada as a child. He is a Turkish and Canadian citizen. Mr.

F attended the University of Calgary graduating with a Bachelor of Commerce in 1992. Mr. F can speak the Turkish language fluently, but has some difficulty reading and writing in Turkish. [ 15 ] In 1994, Mr. F moved from Calgary to Antalya, Turkey to work with Krom A.S., a housing development company, founded and partly owned by his father. The parties met and began dating. [ 16 ] In 1996, Mr. F left Krom A.S. and began working as an employee at Capella & Auriga. Ms. F subsequently transferred 5% of the shares of Capella & Auriga to Mr.

F. [ 17 ] After a two-year engagement, the parties married in Turkey on September 14, 1997. They purchased a home in Ankara and lived there for the following year. [ 18 ] In 1999, Mr. F accepted a position as the Director of Kermer Tourism A.S., a housing development company located in Istanbul. The parties relocated to Istanbul. Ms. F opened a second location for Capella & Auriga in Istanbul, while maintaining its head office in Ankara. The parties kept their home in Ankara and rented a home in Istanbul. [ 19 ] Ms.

F testified that during the peak of its operations, Capella & Auriga had up to 12 employees and was providing her with an income of up to $300,000 CAD per year. Mr. F disputes that the company was ever so profitable. Neither party provided documentation to substantiate Capella & Auriga’s profitability. [ 20 ] The parties disagreed about who was the primary financial provider while they resided in Turkey. What is clear is that while living in Turkey, both parties worked full-time and each contributed financially to their joint living expenses.

I find that while the parties lived a comfortable lifestyle in Turkey, it was neither extravagant nor luxurious. In support of this finding, I noted the parties’ lifestyle and living conditions in Canada. Whatever assets and savings they had from working in Turkey were not significant. No documentation or evidence was provided to suggest otherwise. [ 21 ] In 2001, Mr. F moved to Canada to pursue a business opportunity with Bill Pringle. Mr. Pringle offered Mr.

F the opportunity to join him and three others in founding and organizing a land and housing development company, that eventually became Bordeaux Properties Inc. (“BPI”). Mr. Pringle would provide the capital and Mr. F would carry out BPI’s operations. Mr. F would receive an ownership share in BPI in exchange for his work in identifying and completing real estate development projects. [ 22 ] Mr. F earned no salary for his first six months with BPI; he lived with a friend and worked odd jobs to support himself. [ 23 ] BPI has two wholly owned subsidiaries:

(1) Bordeaux Developments Corporation (“BDC”), its land acquisition entity whose flagship project is the Harmony real estate development project in SW Calgary (the “Harmony Project”) and,

(2) Baywest Homes Ltd. (“Baywest”), its homebuilding entity. BPI also owns a 75% interest in BFT Limited Partnership, which owns a commercial building in Calgary. BPI owns a 28.9% interest in Harmony Limited Partnership, which owns a 27.1% interest in the Harmony Project. BDC also owns a proportionate share of the Harmony Advanced Water Systems Corporation, an entity that owns the water and waste water utility assets for the Harmony Project. [ 24 ] Commencing in approximately May 2002, Mr. F received a salary for his role as Vice President of Sales and Marketing of Baywest. Mr.

F subsequently assumed the role of President and CEO of Baywest and eventually transitioned into his current position as President and CEO of BPI. Mr. F is also a director of the general partner of Baywest GP Inc., which is the general partner of Baywest LP. [ 25 ] Over time, Mr. F’s holding company Pera Investments Ltd (“Pera”) acquired an ownership interest in BPI. At date of trial, Pera owned 66,279 Class A common shares of BPI (the “BPI Shares”). Mr. F is the sole shareholder of Pera. [ 26 ] Ms. F remained living in Turkey until 2002. She sent money to Mr. F, but they dispute the amount. Mr.

F testified at trial that he only received $4,000 CAD from Ms. F. Neither party provided documentation to substantiate how much money Ms. F sent to Mr. F in Canada while she remained working in Istanbul. I find that if Ms. F sent any money to Mr. F it was not a significant amount. [ 27 ] In late 2002, Mr. F and Ms. F had an “uncomfortable conversation” because Ms. F was reluctant to move to Calgary. The parties discussed the choice between divorce and Ms. F moving to Calgary. Ms.

F testified that she agreed to move to Calgary because of that conversation, but that her understanding was that the move was to be temporary, for two to three years, after which time, the parties would move back to Turkey to live and work. Mr. F disputes that there was any agreement that they would return to Turkey, but he conceded at trial that he agreed they would consider moving back to Turkey at some time. [ 28 ] With her move to Calgary, Ms. F closed the offices of Capella & Auriga. With the assistance of her siblings, Ziya and Ozden,

Ms. F maintained Capella & Auriga’s corporate registration, phone line and website at an annual cost of $5,000 CAD so that she could more easily resume its operations on her return to Turkey. Ms. F also sold the parties’ Ankara home. There was no evidence as to the net proceeds realized from its sale. [ 29 ] The parties purchased a home in Elbow Park (the “Matrimonial Home”). The parties made a down payment on the Matrimonial Home using funds received from the sale of the Ankara home. [ 30 ] In 2003, the parties learned that they were expecting a child. At the time, Mr. F was the sole income earner.

The parties’ only child, TP, was born in March, 2004. [ 31 ] In early 2005, Ms. F secured employment as an independent HR consultant with Manpower Canada (“Manpower”) at an annual salary of approximately $45,000. Her role was to assist in expanding Manpower’s business into the executive recruitment placement area. [ 32 ] In May 2005, TP, at 14 months of age, was diagnosed with neuroblastoma, a serious life- threatening form of cancer. Ms. F took a leave of absence from Manpower to care for TP, returning at some point to work part-time. [ 33 ] In 2006, Ms.

F resigned from Manpower because she remained concerned about TP’s health and her part-time employment at Manpower was not working out. Ms. F has not worked outside the home since 2006 when she ceased her employment with Manpower. [ 34 ] By March 2007, TP had made a full recovery and was cancer free. [ 35 ] In the summer of 2007, the parties travelled to Turkey with TP for summer holidays. [ 36 ] In 2008, Ms. F’s father was diagnosed with terminal lung cancer. From September 2008 until February 2009, Ms. F and TP lived in Istanbul with Ms. F’s family so that Ms. F could help care for her father.

TP was 4 years old at the time and attended school in Istanbul. Mr. F travelled to Turkey on three occasions in this six-month period to be with his family. [ 37 ] In January 2009, Ms. F’s father passed away and Ms. F and TP returned to Calgary. [ 38 ] In October 2009, the parties obtained a $120,000 line of credit secured against title to the Matrimonial Home. Up until approximately June 2010, Mr. F drew on the line of credit, testifying that he used the money to pay for joint credit card debt and living expenses. [ 39 ] In December 2009, Mr.

F filed a Statement of Claim for Divorce and Division of Matrimonial Property (the “First Divorce Action”). The ground for divorce was that the parties had been living separate and apart since September 10, 2009, which was not true. [ 40 ] Ms. F testified that she was not aware of the First Divorce Action because she had never been served with the Statement of Claim. In December 2009, however, Ms. F and TP travelled to Turkey to attend Ms. F’s brother’s engagement celebrations under the terms of a Consent Order issued under the First Divorce Action.

The Consent Order stipulated that TP was to return to Calgary on December 26, 2009. Ms. F testified that she was unrepresented by counsel at the time and was unaware that Mr. F had filed for divorce. [ 41 ] The parties ultimately separated in April 2010, but continued to live together in the Matrimonial Home. At the date of separation, Ms. F was almost 39 years old, Mr. F was almost 42 years old, and TP was 6 years old. [ 42 ] In August 2010, Ms. F filed a Statement of Claim for Divorce and Division of Matrimonial Property. Ms. F testified that it was at this time she learned of the First Divorce Action. Ms.

F sought sole custody of TP with reasonable access to Mr. F. I accept that MS. F was not aware of the First Divorce Action. [ 43 ] In October 2010, Mr. F moved out of the Matrimonial Home and into a rented townhouse in a neighborhood close to the Matrimonial Home and TP’s school. [ 44 ] Following the parties’ physical separation, Ms. F was TP’s primary caregiver. Mr. F had unspecified access with TP. In 2011, this court granted Mr.

F increased specified access to TP and in 2012, this court ordered a shared parenting arrangement, both of which are discussed in more detail later in these Reasons. [ 45 ] In April 2012, the parties sold the Matrimonial Home. The sale proceeds were used to pay off the mortgage and the parties’ joint of line of credit. From the remaining net sale proceeds, each party received approximately $65,000. [ 46 ] After the sale of the Matrimonial Home, Ms. F moved into a rental apartment. Ms.

F currently resides in a rented condominium in Calgary. [ 47 ] On January 31, 2011, the parties obtained a Consent Interim Support Order (the “2011 Support Order”). The 2011 Support Order required Mr. F to pay base child support of $1,735 per month and spousal support of $5,250 per month. The 2011 Support Order further provided that parties would share special or extraordinary expenses under

section 7 of the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ] (“Section 7 Expenses”). The

Section 7 Expenses were identified at the time to be TP’s health care and private school expenses and any other agreed upon expenses or those ordered by the court or by an arbitrator. Mr. F was to pay 70% and Ms. F to pay 30% of current and future

Section 7 Expenses. These support payments commenced on February 1, 2011. The 2011 Support Order stated that Ms. F had a guideline income of zero and Mr. F had an annual guideline income of $200,000, plus bonuses. [ 48 ] Mr. F met and eventually began a relationship with his next-door-neighbor, MW, who has a daughter, E, who is the same age as TP. [ 49 ] In 2011, Mr. F and MW commenced living together.

[ 50 ] In 2013 and 2014, Baywest constructed a home for MW (the “MW Home”) for cost, with MW responsible for paying any cost overruns (there were no cost overruns). MW testified that the MW Home was built for her and Mr. F to live in with their two respective daughters. MW sold her townhouse and liquated other assets to purchase the lot on which to build her new home. MW also obtained a mortgage to finance part of the MW Home’s purchase price. These payments were substantiated by documentation. [ 51 ] On October 31, 2014, MW took possession of the MW Home. Mr. F and MW currently live in the MW Home.

MW pays the monthly mortgage and other expenses. Mr. F pays MW $2,600 per month for his and TP’s occupation of the MW Home. [ 52 ] This trial was originally scheduled for October 2014, but was adjourned and eventually rescheduled to commence in October 2015. [ 53 ] In July 2015, the parties were divorced with corollary relief severed on the understanding that the division of matrimonial property would be decided as if the parties were still married. IV. Mobility [ 54 ] Since separation, Ms. F has wished to relocate to Turkey. She seeks an order permitting TP to relocate with her to Turkey.

In the event TP is not permitted to move to Turkey, Ms. F has indicated that she is amenable to the parties having joint custody of TP, but proposes that she have primary care of TP with specified access to Mr. F. Both of her proposed parenting plans would significantly change the existing equal shared parenting arrangement. [ 55 ] Mr. F opposes Ms. F’s application to relocate TP to Turkey. [ 56 ] First, I must decide whether it is in the best interests of TP to permit her to relocate with Ms. F to Turkey. If I permit TP to relocate with her mother to Turkey, then I must determine the appropriate access for Mr.

F in those circumstances. If I do not permit TP to move to Turkey, then I must decide the appropriate custody and access arrangement until Ms. F relocates to Turkey and the appropriate access arrangement once Ms. F relocates to Turkey. a. Facts i. Parenting Arrangements: From Separation to Trial [ 57 ] At the time of the parties’ separation in April 2010, Ms. F advised Mr. F that she wished to move to Turkey with TP. The parties discussed this possibility, including what the parenting and financial arrangements would be if this were to happen. After some months of negotiations, Mr. F advised Ms.

F that he was opposed to TP moving to Turkey. [ 58 ] Mr. F testified that although he had serious concerns about his future relationship with his daughter and about missing her growing years, he initially told Ms. F that he would agree to TP moving to Turkey. His consent was premised, however, on the understanding that he and Ms. F first would agree on the parenting and financial arrangements. Mr. F testified that with the benefit of time and counselling, he came to the realization that he did not want his daughter to leave Calgary and move away from him to live in Turkey. [ 59 ] Mr.

F testified that he was also concerned, given his experience with Ms. F after their separation and during their negotiations, that Ms. F did not truly value his role as TP’s father. Mr. F does not believe that Ms. F will foster his relationship and parenting time with TP. Mr. F testified that he concluded that if he consented to TP moving to Turkey, Ms. F would attempt to frustrate his relationship with TP and that his future relationship with his daughter would be at risk. [ 60 ] Mr. F pointed to Ms. F accusing him, in an affidavit filed with this court, that Mr.

F possibly had been sexually inappropriate, not only with TP but also with a neighbour’s child. Ms. F admitted at trial that these allegations were not true. He also pointed to Ms. F’s current proposal to move away from a shared parenting regime, a change that would significantly reduce his parenting time with TP. [ 61 ] Ms. F’s testimony was that the parties had an agreement on this issue and that Mr. F had reneged on their agreement. Nonetheless, Ms. F took no steps whatsoever to enforce any such agreement. [ 62 ] I find that while the parties had discussed the possibility of TP moving to Turkey with Ms.

F, and that they were involved in numerous lengthy negotiations on resolving the issue, they had not reached a final agreement on the issue. Their failure to reach agreement prompted numerous court applications. [ 63 ] In March 2011, Mr. F applied for increased specified access with TP. An interim order issued on March 9, 2011 (the “2011 Parenting Order”) granted the parties joint custody of TP with Mr. F’s parenting time specified to take place on alternating weekends from Friday after school until Sunday evening and one overnight visit each week. [ 64 ] In January 2012, Mr.

F brought an application to vary the 2011 Parenting Order to implement an equal shared parenting regime and to require the consensus of the parties for major decisions affecting TP in the areas of non-emergency medical/dental care, education (including change in schools), religion and extra-curricular activities (the “2012 Parenting Application”). Ms. F opposed the 2012 Parenting Application. [ 65 ] Justice Jones of this Court heard the 2012 Parenting Application.

After hearing argument, he determined that he required more information to decide whether a shared parenting arrangement would be in the child’s best interests. He directed an amended Practice Note 7 Intervention “to evaluate, determine and make a recommendation to the Court as to what the impact on [TP] would be of a change from the current arrangement” to a shared parenting arrangement.

[ 66 ] In May 2012, Glenda Lux (“Ms. Lux”), Registered Psychologist, issued a report (the “Lux Report”) to the Court and the parties. [ 67 ] On August 16, 2012, Justice Jones issued his decision (the “2012 Shared Parenting Order”). He determined that it was in the best interests of TP to be parented by each parent 50% of the time, notwithstanding that there remained areas of conflict between the parents. Justice Jones noted Ms. Lux’s comment that Ms. F was concerned about moving to an equal shared parenting arrangement and that Ms. F’s ability to handle conflict might have been deteriorating with time.

Justice Jones noted that he was left with the impression that Ms. F “in her efforts to work through her own unresolved issues with Mr. F was inclined to engage the child in the process more than would be appropriate in the case of an eight year old girl.” [ 68 ] Justice Jones was also aware of Ms. F’s original desire to move to Turkey with TP, but noted that while Ms. F had yet to bring any such application, such an application remained a possibility. [ 69 ] The 2012 Shared Parenting Order took effect on September 4, 2012.

It provided for each parent to have equal parenting time, with parenting time to change on Friday (after school during the school year and at 5:00 pm during summer holidays) and the parent who did not have parenting time that week, would have a mid-week supper visit. There was also to be equal shared parenting time during all school and statutory holidays. This is the parenting arrangement, with some additional terms to address parenting arrangements during holiday times that has been in place for the past three years to the commencement of this trial in October 2015. ii.

Travel to Turkey [ 70 ] Since separation, much of the parties’ dispute has focused on Ms. F’s attempts to travel to Turkey with TP. Ms. F brought a number of interim applications seeking permission to travel to Turkey with TP. Mr. F opposed these applications primarily on the ground that he feared that Ms. F would not return with TP to Calgary. [ 71 ] Ms. F argues that there was no evidence to suggest that she had threatened to abduct TP and remain in Turkey with her. In essence, Ms. F contends that Mr. F had no legitimate basis for refusing her requests to travel to Turkey with TP. Ms.

F testified that she recognizes the importance of the relationship between TP and her father and actively takes steps to foster TP’s relationship with him. Ms. F said that she would never consider alienating TP from her father. [ 72 ] Ms. F points to numerous accommodations she proposed, including having her brother pay for Mr. F and his legal counsel to travel to Turkey so that Ms. F and TP could attend her brother’s wedding, or to have TP travel to Turkey with Mr. F or Ms. F’s mother, so that TP could visit with her mother’s extended family. [ 73 ] Ms.

F also points to the circumstances surrounding the “Turkish Deed”, a document that would have expressly recognized the Alberta courts as having jurisdiction over TP. Mr. F believed that a Turkish Deed, executed by the parties, was necessary to protect his rights in relation to TP in the event Ms. F were permitted to travel to Turkey with TP but did not return TP to Calgary. Ms. F testified that although Mr. F has contended that he resisted Ms. F’s requests to travel to Turkey because Ms. F had refused to sign the Turkish Deed, she had in fact executed the Turkish Deed as Mr. F requested. [ 74 ] At trial, Ms.

F called Dr. Bahadir Erdem (“Dr. Erdem”), a professor of private international law at Istanbul University Law School and the founding senior partner of Erdem Law Firm. Dr. Erdem was qualified as an expert to express opinion evidence on the issue of Turkey’s compliance with the protocols of the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”). [ 75 ] Dr. Erdem confirmed that Turkey has ratified the Hague Convention. It was Dr. Erdem’s opinion that Turkey is compliant with the Hague Convention, although he gave no timeline for Turkey’s compliance. [ 76 ] Dr.

Erdem’s evidence was that Hague Convention matters typically take from 12 to 14 months from a hearing before the Turkish Family Law Courts, being the court of first instance, to a final determination by the Turkish District Appeal Courts. Very few cases are appealed beyond the Turkish District Appeal Courts. Dr.

Erdem stated that Turkish Family Law Courts decide applications for the return of children in accordance with the “habitual residence of the child,” as defined in the Hague Convention, but would not apply the child’s habitual residence if it was found not to be in the child’s best interests to do so. [ 77 ] During cross-examination, Dr. Erdem clarified that Turkey has improved its compliance rates with the Hague Convention and is implementing processes to improve its compliance further. Dr.

Erdem noted that Turkey still experiences some problems in effectively and promptly responding to requests for return of children as required under Hague Convention protocols. According to Dr. Erdem, this is why Turkey has established a working group to shorten the processing time of return applications. The working group has proposed legislative amendments that would consolidate the Turkish Family Law Courts into seven or eight districts, in which only 15 courts would be specialized and authorized to hear Hague Convention matters. This consolidation would hopefully resolve these issues, which Dr.

Erdem noted are more prevalent in the smaller cities in Turkey. Dr. Erdem confirmed that because Turkey is seeking to enter the European Union, it is important that it demonstrate its compliance with the Hague Convention. [ 78 ] Dr. Erdem stated that Turkish courts will typically enforce a custody or access order issued by a foreign court. He confirmed that while there is no formal agreement between Canada and Turkey concerning the enforcement of custody and access orders, Turkey and Canada provide de facto reciprocity of enforcement of such orders and judgments. [ 79 ] I accept Dr.

Erdem’s testimony, although I was somewhat surprised that during cross-examination he admitted that he was not aware that the United States (“US”) Department of State and the International Court cited Turkey as being one of the countries not in compliance with the Hague Convention. Dr.

Erdem was referred to the US Department of State, Office of Children’s Affairs annual report to Congress titled “Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction”, which reports on countries’ compliance with the Hague Convention (the “US Annual Report On International Parental Child Abduction”). The 2011, 2013, 2014 and 2015 US Annual Report on International Parental Child Abduction each cited Turkey as a

country with enforcement concerns. [ 80 ] I also note that Dr. Erdem did not discuss Turkey’s compliance with the Hague Convention in the years 2010 through 2013. Nonetheless, I accept that Turkey is currently compliant with the Hague Convention, but that there may be timing issues on return applications and enforcement of return orders commenced in Turkey. [ 81 ] Mr. F contends that he was genuinely concerned that if Ms. F travelled with TP to Turkey without the appropriate documentation, she would not return TP to Canada. Mr. F testified that his initial reason for objecting to Ms.

F’s travel to Turkey in 2011 with TP was because Ms. F refused to sign the Turkish Deed and other documents, and that Turkey, although a signatory, was not in compliance with the Hague Convention. During cross-examination, Mr. F admitted that Ms. F had eventually signed the Turkish Deed in each of 2011, 2012, 2013, 2014 and 2015 and that either he or his counsel knew she had done so. Mr. F testified, however, that although Ms. F had ultimately signed the Turkish Deed, there were other documents he had asked Ms. F to sign in addition to the Turkish Deed for him to feel secure that Ms.

F would return TP to Calgary but that Ms. F would not sign the documents or asked for changes that were not agreed upon. [ 82 ] In support of his contention that he had a legitimate concern, Mr. F provided copies of the 2011, 2013, 2014 and 2015 US Annual Report on International Parental Child Abduction that he had printed off the US Department of State’s website in conducting his own research. As hearsay documents, they were admitted into evidence not for the truth of their contents, but as the documents that Mr.

F testified he had relied on in forming his concerns about Turkey’s compliance with the Hague Convention. As noted earlier, these documents for the years 2011 through 2015 indicate that the US Department of State identified Turkey as one of the “Countries with Enforcement Concerns” in which a left-behind parent had not been able to secure prompt enforcement of a final return or access order. [ 83 ] Mr. F points to Ms. F’s first court application for travel to Turkey, heard by Justice Brooker of this Court on June 14, 2011. A portion of the transcript from that hearing is in evidence.

Justice Brooker, by order dated June 14, 2011, denied Ms. F’s application to travel with TP to Turkey (the “June 2011 Order”). In making that decision, Justice Brooker noted Mr. F had expressed concern as to whether Turkey was a country considered to be compliant with the protocols of the Hague Convention and that it appeared to him that, given Ms. F’s continuing wish to relocate with TP to Turkey, it would “just be too easy not to come back from this particular holiday...”. [ 84 ] Justice Brooker was also advised by Mr. F’s counsel that Ms. F’s mere allegation in her affidavit that Mr.

F may have been sexually inappropriate with his daughter and a friend created a real risk of a problem that could take years to resolve, even if Turkey was a Hague Convention compliant country. The June 2011 Order specifically notes in the

preamble that the Court has been advised that “An Order from the Alberta Courts can be enforced under the Hague Convention by the Turkish Courts, but there is some evidence as to difficulties with enforcement of the Hague Convention in Turkey.” [ 85 ] Mr. F also points to another of Ms. F’s interim applications, heard by Justice Jeffrey of this Court that resulted in an order issued on August 4, 2011 (the “August 2011 Order”).

The August 2011 Order permitted both parties to travel with TP to the US for a specified period, after which, TP was to be returned to Calgary by a specified date, and failing which, the offending parent would forfeit the amount of $25,000 of matrimonial property. Paragraph 8 of the August 2011 Order stated that “The residence of [TP] shall continue to be Calgary, Alberta, Canada. The only court having jurisdiction to hear matters pertaining to [TP] shall be this Honorable Court.” [ 86 ] On September 30, 2011, Ms. F brought, on her own initiative, an application to vary the August 2011 Order.

A portion of the transcript from that hearing is in evidence. The transcript shows that Ms. F sought to remove the sentence from paragraph 8 that stated that the Alberta courts retained jurisdiction over TP. Ms. F told Justice Jeffery of this Court that this was a surprise decision for her and that although she had always chosen to resolve these matters in Alberta, she was not certain what would happen if her residence were somewhere else. Ms. F said that she might want to find out more about her rights in Turkey. Justice Jeffrey declined to amend paragraph 8 stating that the “wording doesn’t restrain [Ms.

F] from proceeding with any existing application there may have been about there being another court that would be able to entertain jurisdiction with respect to [TP]...” Ms. F was self-represented on the application. [ 87 ] Finally, Mr. F pointed to Ms. F’s false allegation that Mr. F had been sexually inappropriate with TP and perhaps with one of her friends. Mr. F submitted that such an allegation could have supported an argument advanced by Ms. F in the Turkish courts that TP would be in danger if returned to Calgary and could provide the basis for a Turkish court undertaking a “best interest analysis”.

Such action could have resulted in Mr. F having to prove that he was a good father in the Turkish courts, resulting in significant delay and uncertainty in the return of TP to Calgary. [ 88 ] I am satisfied that Mr. F had substantiated and legitimate reasons for his concerns that appropriate safeguards needed to be in place before he consented to TP travelling to Turkey with her mother. I am also satisfied from the evidence that Ms. F had not provided all the documentation that was required to safeguard TP’s return to Calgary until the visit to Turkey in the summer of 2015. iii.

TP’s Circumstances [ 89 ] At the time of separation in 2010, TP was six years old. Initially, Ms. F was TP’s primary caregiver and TP spent alternate weekends and one overnight visit each week with her father. As discussed, the parenting arrangement changed in September 2012 to shared parenting; TP now lives half time with her mother and half time with her father. [ 90 ] When TP is residing with her mother, it is just the two of them living together. From time to time, Ms. F’s mother travels from Turkey to spend extended time living with Ms. F and TP. Ms.

F’s brother and sister have also travelled from Turkey to visit with Ms. F and TP in Calgary. TP has a close relationship with her maternal grandmother, uncle, and aunt. [ 91 ] Since 2011, when TP is residing with her father, she is living in a blended family consisting of her father, her father’s partner, MW, and MW’s daughter, E, who is the same age as TP. The two girls and Mr. F reside with MW in the MW Home. The evidence presented indicates that the two girls have a close relationship and that they appear to consider themselves as sisters, albeit not best friends.

The two girls shared a bedroom until their move to the MW Home, where they each have their own bedroom. They also have a dog, who is apparently an important family member.

[ 92 ] Mr. F’s sister, Siren, and her husband and son reside in Calgary. TP regularly sees Siren and her family. Mr. F’s mother resides in Victoria and Mr. F’s father splits his time between BC and Thailand. TP visits with her paternal grandparents in Victoria and sees them when they come to Calgary. TP has a close relationship with her father’s family. [ 93 ] TP is currently in grade six at the Lycée Louis Pasteur School (“Lycée”) in Calgary. She has a number of friends at school and is doing well there. From all accounts, including the testimonies of Ms.

F’s friends, TP appears to be a well-adjusted, well-liked young lady. [ 94 ] TP takes ballet lessons numerous times a week, an activity she very much enjoys. Both parents support TP’s interest in ballet. Both parents take TP to her ballet lessons when she is in their respective care. [ 95 ] TP also takes piano lessons on a weekly basis when in her mother’s care, but does not take piano lessons while in her father’s care because he does not support it. Ms. F said that TP enjoys piano and that she benefits from taking piano lessons. [ 96 ] Mr. F testified that he does not believe TP is very interested in piano. Mr.

F testified that he believes TP is more interested in other activities such as basketball. TP plays badminton on Monday evenings while in her father’s care, but does not attend badminton when in her mother’s care. TP also takes swimming lessons while in her father’s care. [ 97 ] Both parents have taken TP snowboarding, a sport she apparently enjoys. iv. Professional Assessments of TP The Lux Report [ 98 ] As was stated above, Ms. Lux completed the Lux Report in 2012 in connection with the 2012 Parenting Application. [ 99 ] Mr. F gave Ms.

F notice that he intended to introduce the Lux Report into evidence without calling Ms. Lux as a witness during this trial. Ms. F requested that Ms. Lux be made available for cross-examination prior to or during trial. Mr. F decided not to call Ms. Lux as a witness. With this turn of events, I gave Ms. F the option of calling Ms. Lux to give evidence. Ms. F did not do so. In the result, Ms. Lux did not testify during this trial to speak to the content of the Lux Report.

The Lux Report was not entered into evidence. [ 100 ] Nonetheless, the transcript from the hearing before Justice Jones and his decision on the 2012 Parenting Application are in evidence. Both documents incorporate comments made by Ms. Lux at the time. [ 101 ] I considered the comments in Justice Jones’ decision relevant insofar as they explain why he implemented the shared parenting regime. His decision was based in part on concerns expressed by Ms. Lux about Ms. F. I appreciate, however, that Ms. Lux’s comments are now outdated comments, having been made some four years ago. Nevertheless, Ms.

Lux’s comments do provide some historical context about the parties’ then relationship and their relationship with their child. [ 102 ] What I accept from that evidence is that Ms. F opposed shared parenting of TP in 2012, as she does today. Voice of the Child Report [ 103 ] Nicole Sheldon (“Ms. Sheldon”), the psychologist appointed to prepare a Voice of the Child Report by the case management justice under Practice Note 7, completed her report on October 7, 2014 (the “Voice of the Child Report”).

The purpose of the Voice of the Child Report was to “provide information to the Court about the child’s experiences in this family, her perspective on her current living arrangements and to provide some insight into the child’s hopes and worries about the future”. TP was not to be asked about her preference regarding a move to Turkey. [ 104 ] Ms. Sheldon testified during trial about TP’s experiences. Her Voice of the Child Report was entered into evidence. [ 105 ] Ms. Sheldon described TP as a delightful child who is confident, engaging, loving and bright.

TP spoke positively about the people in her life. [ 106 ] Ms. Sheldon reported that TP clearly loves both her parents but is closer to her mother, describing her connection to her mother as about “something inside her”. TP said that when she is with her mother they are never really apart. TP also reported that she sometimes still sleeps with her mother because the closeness feels “nice”. TP told Ms. Sheldon that when she first started spending more time with her Dad, she missed her mother and felt lonely. Ms.

Sheldon reported that TP loves her father and that she has fun with him and they play games together. [ 107 ] Ms. Sheldon reported that TP commented on her blended family, noting the differences in rules and expectations between the two homes. There appears to be more structure in expectations and home life at Mr. F’s home. TP said that she likes MW but does not love MW the way she loves her parents. TP said that she likes E, but that E is not her best friend as she has other friends. TP spoke positively about living in both homes. [ 108 ] Ms.

Sheldon reported that TP commented that while she wanted to visit Turkey and see her family in Turkey more often, she did not want to live in Turkey permanently because she likes her school and her friends in Calgary. TP said that because her father’s family lives in Canada, she sees them more often than her mother’s family. In a follow-up meeting, TP commented that she might want to live in Calgary for a couple more years and then move to Turkey when she was in grade 6 or grade 7. [ 109 ] Ms. Sheldon reported that TP really wants to visit Turkey and could not understand why she had not been able to go there.

TP said that she received different reasons from each of her parents as to why she has not been allowed to travel to Turkey. TP said that her mother really wants to go to Turkey, but that her mother does not want to move without TP. TP also said that she has Turkish friends who

visit and holiday in Turkey during the summers and tell her about Turkey. [ 110 ] Ms. Sheldon reported that TP is aware of the conflict and tension between her parents and wishes that they could get along better, although she said she is neither happy nor sad about the situation. Overall, however, TP said she just wishes her parents could get along better, the way E’s mother, MW, does with E’s father. [ 111 ] A Voice of the Child assessment is a snapshot in time and the expert’s opinion is based on the then-existing circumstances. While Ms.

Sheldon’s testimony was of some assistance, it was given limited weight because Ms. Sheldon’s last interaction with TP was more than one year ago. Dr. Pezzot-Pearce [ 112 ] In 2011, the parties obtained a consent order requiring TP to see a psychologist to assist her in dealing with issues arising from the changes in her life due to the separation of her parents and to assist her in maintaining her relationships with both parents. The parties agreed that Dr. Pezzot-Pearce would be TP’s counsellor. [ 113 ] Dr. Pezzot-Pearce testified at the trial.

She has been seeing TP since she was seven and one-half years old. [ 114 ] For the first year, Dr. Pezzot-Pearce saw TP once per week. Starting in 2012, Dr. Pezzot-Peace saw TP monthly, which remains the current schedule, with some exceptions. Dr. Pezzot-Pearce indicated that over time she is hopeful that she can reduce her sessions with TP so that TP only comes and sees her when TP thinks she needs to see her. [ 115 ] Dr. Pezzot-Pearce was clear that, as she was the child’s psychologist, she would make no recommendations or express any opinion on the mobility question. Dr.

Pezzot-Pearce indicated that she had met with TP, and separately with her parents from time to time, approximately 55 times. [ 116 ] I considered Dr. Pezzot-Pearce’s evidence to be the most relevant evidence as it is the most current assessment of TP’s circumstances. [ 117 ] Dr. Pezzot-Pearce said that when she first started seeing TP, TP was experiencing some difficulty separating from her mother to go to her father, while at the same time, really missing her father, and wishing that her family would get back together. [ 118 ] Dr.

Pezzot-Pearce said that TP is generally happy in her current shared parenting regime. She described TP as a poised, articulate, caring, humorous and happy child. She said that TP has very good relationships with peers and with both sides of her parents’ family. Dr. Pezzot-Pearce commented that TP is generally a very resilient young woman. [ 119 ] Dr. Pezzot-Pearce said that TP has a good healthy relationship with MW and with MW’s daughter, E. Dr. Pezzot-Pearce said that TP and E are very much like sisters. Dr.

Pezzot-Pearce said that she hears more complaints from TP about her cousin, who is a boy of the same age, who “bugs the heck out of her”. TP said that she found MW helpful because MW understood her situation. Dr. Pezzot- Pearce believed that TP was quite happy living with her father, MW, and E. [ 120 ] Dr. Pezzot-Pearce was aware that the Voice of the Child Report was prepared in 2014. Dr. Pezzot-Pearce expressed some concern about the report because TP was only 10 years old at the time. Dr. Pezzot-Pearce said that TP had always expressed relief that her parents were going to make decisions for her. Dr.

Pezzot-Pearce was concerned that TP might have to choose between her parents. [ 121 ] Dr. Pezzot-Pearce said that after completion of the Voice of the Child Report, TP became more vocal about wanting to move to Turkey. Then she eased off about the topic, but that the topic emerged again in 2015. Dr. Pezzot-Pearce said it became a pattern, with TP expressing her desire to move to, or to visit, Turkey, then she would ease off about the topic, and then begin talking about it again. Dr.

Pezzot-Pearce said that TP blamed her father for not allowing her to visit Turkey. [ 122 ] In the months following the Voice of the Child Report, Dr. Pezzot-Pearce noted that TP was going through a difficult time. TP was having difficulty separating from and wanted to spend more time with her mother. TP was resisting her father and expressing some negative comments about her father. Dr. Pezzot-Pearce said that this represented a change, as TP’s prior comments about her father had been always positive. [ 123 ] Dr.

Pezzot-Pearce discussed TP’s concerns and confusion in the months leading up to her summer 2015 visit to Turkey. Dr. Pezzot-Pearce commented that TP had a few more worries in 2015, especially in the early part of 2015 -- her dog died, she was worried about her father’s health, and she was very worried that she would not be able to visit Turkey in the summer. [ 124 ] TP expressed her concern and confusion about hearing different things from her parents about her upcoming summer visit to Turkey. TP said that she wanted to go to Turkey in July because it was her cousin’s first birthday.

TP said that her mother had told her that she wanted to go to Turkey in July and had requested July. TP said her father told her that he hoped she could go to Turkey, but that her mother had requested August. [ 125 ] In late April 2015, Dr. Pezzot-Pearce met and had discussions with both parents to see if they could help settle TP on this issue. [ 126 ] Dr. Pezzot-Pearce said that Mr. F brought the subject up as an issue with TP. Mr. F showed Dr. Pezzot-Pearce a November 2014 email in which he had asked Ms. F which month she wanted, July or August, and other documents in which Ms.

F had said that she really wanted August. Dr. Pezzot-Pearce said that this was creating difficulties for TP and it needed to be resolved. Dr. Pezzot-Pearce said that by the end of the session, Ms. F conceded that she might have requested August. Nonetheless, through May and June 2015 TP remained quite confused about the July/August matter. TP continued to tell Dr. Pezzot-Pearce that her mother had really requested July and that her father was insisting on August. The documentation shows that this was not true. [ 127 ] It appears that Ms.

F was largely responsible for TP’s confusion over the dates for the 2015 Turkey visit.

[ 128 ] Dr. Pezzot-Pearce commented that TP always wanted to go and experience Turkey and that TP said she might want to move to Turkey, but probably not permanently. After her 2015 summer holiday in Turkey, TP expressed that she really enjoyed her trip to Turkey and that she still might like to move there but not until the next summer because she was having too much fun in Calgary. [ 129 ] Dr. Pezzot-Pearce said that in the first couple of years TP expressed that she was generally pretty content with how things were and was relieved that her parents were making decisions for her.

In the last year, however, TP has started voicing a wish to make her own decisions. [ 130 ] Dr. Pezzot-Pearce noted that TP is coping well with her parent’s separation. She is comfortable while in the care of either parent and responsive to both parents. Dr. Pezzot-Pearce believed that both parents are very caring and loving parents and exert an effort to keep TP away from their conflict. Dr. Pezzot-Pearce concluded that TP is very lucky, because she has two very involved and loving parents. [ 131 ] Dr.

Pezzot-Pearce testified that TP has a different relationship with each of her parents but enjoys her time with both. TP is closer to her mother and shares more with her mother than with her father; however, TP is starting to share more with her father. Dr. Pezzot-Pearce said that it is normal for a child’s relationship with each parent to be different. Dr. Pezzot-Pearce believes that TP has a loving, happy, and healthy relationship with both her parents. v. Proposed Parenting Plans Ms. F’s Proposed Parenting Plan [ 132 ] Ms.

F wishes to relocate to Istanbul, Turkey, to live and work near her family, who would contribute to her financial and emotional support. Ms. F proposes that the parties have joint custody of TP, but that TP move with her to Istanbul. [ 133 ] Ms. F, her brother, and her sister all testified to their close relationship and their future plans for Ms. F and TP if they were to move to Istanbul. It is clear that Ms. F has a close, loving, and supportive relationship with her mother, sister, brother, and other extended family members, all of whom reside in Turkey.

I also accept that TP has a close and loving relationship with her mother’s extended family, especially so with her maternal grandmother and aunt. [ 134 ] Ms. F is currently unemployed and has been so since the parties’ separation in 2010. Ms. F contends that she has been and will continue to be unable to secure employment for so long as she stays in Canada. Ms. F provided evidence that her brother and sister’s company, Petra Industries Inc. (“Petra”), has extended her a standing offer of employment if she moves to Istanbul. The offer contemplates Ms.

F heading up Petra’s HR area and for which, she would initially earn a salary equivalent to $110,000 CAD. Following two years of employment, Ms. F and her siblings anticipate that she would become a partner in Petra and entitled to share in its profits. [ 135 ] I find that if Ms. F relocates to Istanbul, she would secure employment with Petra at an annual salary of approximately $110,000 CAD. [ 136 ] Ms. F testified as to arrangements she would make to ensure a smooth transition should TP be permitted to relocate with her to Istanbul. [ 137 ] Ms. F and TP would reside with Ms.

F’s sister, who is single and owns a townhouse in a secure condominium complex just outside Istanbul. Ms. F’s mother, brother and his family all reside in the same condominium complex. [ 138 ] TP would attend the Lycée Pierre Loti in Istanbul, which is affiliated with and teaches a very similar curriculum to that taught at Lycée. TP would continue her ballet and attend a reputable ballet school. [ 139 ] Ms. F proposes that she and Mr. F have joint custody of TP. Ms. F testified that she would facilitate Mr. F’s access time with TP. [ 140 ] Ms.

F proposes that TP travel to Calgary to spend the following time with Mr. F: (1) six consecutive weeks in the summer; (2) ten full days not including travel time during the Christmas school break; (3) alternating spring breaks of two weeks duration; and (4) each October school break for nine days including travel time. Ms. F would pay the travel costs for TP to travel between Calgary and Turkey. [ 141 ] Mr. F would also be entitled to access to TP whenever he comes to Turkey. Ms. F is agreeable to sharing proportionally, in accordance with their respective incomes, the cost of three economy tickets for Mr.

F annually. [ 142 ] Ms. F proposes that each parent provide consents for international travel with TP. [ 143 ] Ms. F proposes that TP have unlimited Skype, telephone, email, text and Facetime contact with Mr. F. [ 144 ] Ms. F also proposes that, at the instance of either parent one year after TP’s relocation to Turkey, a new Voice of the Child Report be prepared and provided to the Alberta courts for review. [ 145 ] In the event that TP is not permitted to move to Turkey with Ms. F, Ms. F stated her intention to remain in Calgary with TP. [ 146 ] Ms.

F proposes that the parties have joint custody of TP but that she would have primary residential care of TP. Mr. F would have access Thursday night to Monday morning every other week and Tuesday overnight in the intervening week. The parties would alternate TP’s Christmas school break, October school break, and spring break. Each party would have four weeks of TP’s summer vacation. Mr. F would have unlimited Skype, telephone, email, text, and Facetime access with TP. A Voice of the Child Report would be completed after TP’s 13 th birthday, to be provided to the Court on a review at the instance of either parent.

Both parties would be

permitted to travel to Turkey and other international destinations with TP, with consents provided by each party for such travel. Mr. F’s Proposed Parenting Plan [147] Mr. F proposes that the parties have joint custody of TP, regardless of her place of residence. Mr. F opposes TP moving toIstanbul. [148] When Ms. F moves to Istanbul, Mr. F proposes that TP live in his primary care in Calgary, with generous and liberal access toMs. F. Ms. F would be permitted to spend time with TP in Turkey and in Calgary. [149] For so long as Ms. F remains living in Calgary, Mr.

F proposes that the parties continue with the equal shared parenting regime.Transition days would remain every Friday except holidays, where the equal division of the holiday would result in a different transitionday. Transition time would be after school or 5 PM when there is no school or it is a holiday. Holidays greater than one day would beshared equally. Holiday periods equal to or less than one day would be taken by the parent whose natural week it is. The alternatingweekly

schedule with a Friday transition would resume its natural pattern following each holiday. Summer holidays would be sharedequally in two blocks of time. Each year, the parents would alternate who starts the summer with TP. All school holidays (Christmasbreak, October break, and spring break) would be shared equally. TP would continue her counselling sessions with Dr. Pezzot-Pearce. [150] In the event that Ms. F remains living in Calgary but obtains project-based work in Turkey (which Ms. F says is not possible),Mr. F proposes that the parties continue the equal shared parenting regime. Mr. F’s parenting

schedule would be flexible toaccommodate Ms. F’s travel arrangements. For the period of time Ms. F is away, Mr. F would parent TP 100% of the time. Upon Ms. F’sreturn to Calgary, she would parent TP 100% of the time until an equal balance is reached, at which time, the arrangement would revertto the equal shared parenting arrangement with Friday transitions. Holiday time would be the same as set out for the equal sharedparenting arrangement. [151] In the event TP is permitted to move to Istanbul with her mother, Mr. F proposes that he have access to TP whenever he is inTurkey. Mr.

F would also have access to TP in Calgary for four weeks every summer, two weeks during TP’s Christmas Break, andevery spring break. TP would be permitted to travel anywhere in world with Mr. F. Mr. F proposes that TP have unlimited Skype,telephone, email, text, and Facetime contact with him. [152] Mr. F proposes that TP would be permitted to travel to international destinations with either parent provided the travellingparent executes the Turkish Deed containing the same terms as the Turkish Deed executed by the parties on July 10, 2015.

Thetravelling parent would also obtain a consent order containing the same terms as those contained in the Consent Order issued by JusticeAnderson of this Court on July 24, 2015. b. Guiding Legal Principles [153]

Section 16 of the Divorce Act, grants the court jurisdiction to make an order for custody of, and access to, any or all children ofa marriage. Section 16(8) requires that in making a custody order, the court take into account only the best interests of the child, havingregard to “the condition, means, needs and other circumstances of the child”.

The court is to give effect to the principle that a child ofthe marriage should have as much contact with each parent as is consistent with the child’s best interests (s 16(10)). [154] The Supreme Court of Canada, in its seminal mobility decision, Gordon v Goertz, (SCC), [1996] 2 SCR 27[Gordon], provided guidance for courts dealing with applications to vary a final custody or access order for the purpose of relocating with a child. [155] First, before considering the merits of the application to change a final custody and access order, the court must be satisfied thatthe threshold test of demonstrating that there has been a material change in the circumstances of the child has been met: Gordon, at para49.

For cases involving relocation in which a final custody and access order has not yet been made, the courts have applied a blendedapproach, which permits the question of relocation and custody and access to be decided at the same time. In such cases, there is no needto make the threshold determination as to whether there has been a material change in circumstances, and the court’s focus turns to aconsideration of the relevant child-centred factors identified in Gordon: K(

T) v A(RJH), 2015 BCCA 8, at para 47. [156] Once the threshold condition has been met, or if it need not be considered, the court is to embark on a fresh inquiry into the bestinterests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parentto satisfy them: Gordon, at para 17. The focus of the inquiry is not on the parents’ interests and rights.

This is because the only issue isthe best interests of the child and each case is to be decided on its own unique circumstances: Gordon, at paras 19 and 28. [157] In determining the best interests of the child, the Supreme Court of Canada identified seven factors for consideration (Gordon,at para 49): 1) The existing custody arrangement and relationship between the child and the custodial parent; 2) The existing access arrangement and the relationship between the child and the access parent; 3) The desirability of maximizing contact between the child and both parents; 4) The views of the child; 5) The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needsof the child; 6) Disruption to the child of a change in custody; and

7) Disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [ 158 ] While the “best interests” analysis requires a consideration of the seven factors, the analysis must also evaluate the effect on the child’s interests in the new circumstances, should the child relocate, as compared to the status quo. “The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new”: Gordon , at para 50 . [ 159 ] Legal presumptions or default positions should play no

part in the Court’s consideration of the best interests of the child. As the Court of Appeal stated in Cavanaugh v Balkaron , 2008 ABCA 423 , at para 12 : To be clear, there are no longer any presumptions or default positions that regulate decisions as to custody and access. The sole determinant is the best interests of the child. While other principles may be considered, particularly where both parents are equally suitable, they must be viewed and determined from the standpoint of the best interests of the child.

For instance, see A v A , 2005 ABQB 607 , where the court refused to authorize a custodial arrangement that would have the children move between the parents up to four times per week in a highly conflicted separation, because it suited the parents. [ 160 ] Our courts expressly recognize the right of a parent to relocate to a place of his or her choosing.

As our Court of Appeal explained in MacPhail v Karasek , 2006 ABCA 238 [ MacPhail ], at paragraphs 44 and 45 : …Canadians are mobile and the courts are not the arbiters of the reasonableness of every decision a custodial parent makes. … Certainly access parents are not. Moreover, it is not an option to conclude that a child’s best interests are best served by both parties living in the same place any more than it is an option to consider that it is in a child’s best interest that their parents remain together.

Canadians have the right to choose to separate and divorce, and they have the right to relocate, and it is not for the courts to determine whether they like or agree with the reason for separating or moving. Custodial parents should not be faced with a potential loss of custody simply because they choose to move. Nor should a decision to move be seen automatically as a negative factor in the ability to parent. [ 161 ] Indeed, the court must assume that the parent will move and determine the child’s best interests in that context, including the potential effect of removing the child from that parent’s care.

Evidence of the moving parent’s stated intention to move or not to move is of no assistance to the court in its determination of whether to permit a child to relocate with one parent away from the other parent: MacPhail , at paras 51-52 ; Spencer v Spencer , 2005 ABCA 262 , at para 18 . [ 162 ] Courts are cautioned to take care in considering a parent’s motive to relocate. A parent’s reason for moving will generally only be considered relevant in those exceptional circumstances where the parent is moving for the purpose of meeting the needs of the child: Gordon , at para 49 .

However, while a parent’s motive to move may not be a relevant consideration, their reason for moving may negatively affect that parent’s perception of their child’s needs and judgment about how those needs may be fulfilled: Gordon , at para 23 . c. Application of Law to these Circumstances [ 163 ] The 2012 Shared Parenting Order put the current parenting arrangement in place; it is subject to final determination in these proceedings. As a result, there is no need to consider whether Ms.

F has satisfied the Gordon threshold requirement, that there is a material change in circumstances, before considering the merits of Ms. F’s mobility request. In any event, this requirement is satisfied. Ms. F proposes to move to Istanbul and TP has been in a shared parenting arrangement living equally with her mother and father, both of whom currently live in close proximity in Calgary. [ 164 ] As discussed earlier, Ms. F has always had the unfettered right to move to Istanbul or anywhere else she may choose to reside.

The issue to decide is whether it is in TP’s best interests for her to move to Istanbul with her mother or to remain living in Calgary with her father. For absolute clarity, Ms. F’s stated intention to remain in Calgary if she cannot bring TP with her to Istanbul is not a relevant factor considered in my determination of this issue. [ 165 ] In this case, assuming as I must that Ms. F goes ahead with her plan to move to Istanbul, the outcome of the application will result in significant separation from one of two primary caregivers.

In addition, the outcome will also result in long distance travel along with its associated cost, for the child and access parent in order to facilitate access time in Calgary or Turkey. The inevitable result is that one parent’s relationship with TP will be significantly impacted. [ 166 ] In assessing the implications of these outcomes, I undertook a fresh inquiry into which custody arrangement is in the best interests of TP having regard to all the relevant circumstances relating to her needs and the respective parent’s ability to satisfy them. In so doing, I was guided by the factors identified in Gordon . i.

The Existing Custody Arrangement and Relationships [ 167 ] In assessing this factor, the Alberta Court of Appeal has directed that the trial judge disregard the labels attached to parenting arrangements and assess the substance of the role that each parent plays, both physically and emotionally, in the child’s life: MacPhail , at paras 54-56 ; MO v CO , 2012 ABCA 297 , at para 8 . [ 168 ] Here, Ms. F argues that she is TP’s primary parent, as evidenced by the extremely close emotional connection that TP has with her.

She suggests that TP relies on her for emotional comfort and security that is not available in the same way from her father. [ 169 ] While Ms. F was the primary caregiver for the first several years of TP’s life as a stay-at-home parent, that role changed somewhat in 2005 when Ms. F secured full-time employment with Manpower. When TP was diagnosed with neuroblastoma, the parties agreed that Ms. F would resign her position to care for TP on a full-time basis. Ms. F did so and became the primary caregiver for TP. However, I accept Mr. F’s testimony that he assisted Ms. F with caring for TP during her illness.

Together, the two of them sought and

considered recommendations and ultimately made decisions regarding TP’s medical treatment. [ 170 ] Immediately following the parties’ separation in 2010, Ms. F was TP’s primary parent and caregiver. Thus, it is the case that Ms. F was TP’s primary care giver from birth to several months after separation. [ 171 ] Shortly thereafter, however, Mr. F began his attempts to seek more access time with his daughter, all of which required court action. Mr. F’s actions ultimately resulted in the current equal shared parenting regime. [ 172 ] The existing custody arrangements are such that, notwithstanding Ms.

F’s contention that she is the primary parent, neither parent can be regarded as a custodial parent, nor as an access parent or the primary parent, given the day-to-day equal shared parenting arrangements that have been in place for more than three years [ 173 ] TP now spends half her time with each of her parents. Both parents are actively involved in TP’s life and play an equal parenting role. Each parent takes responsibility for caring for TP’s daily needs, health care, education, and extracurricular activities when TP is in their care.

This is not a case where one parent has limited or sporadic contact with the child. [ 174 ] The evidence satisfies me that in the current parenting regime, TP is a well-adjusted, happy child who has a loving and caring relationship with both of her parents. The evidence also satisfies me that Ms. F and Mr. F are capable caring parents who love their daughter very much. Both parents have played a significant and important role in raising their daughter. As Dr. Pezzot-Pearce expressed it, TP is a very lucky child to have parents who are so very much involved in her life. [ 175 ] As noted by Dr.

Pezzot-Pearce, and as might be expected, TP’s relationship with each of her parents is different. The expert evidence indicates that TP has a very close emotional connection with her mother and is perhaps, at this time in her life, closer to her mother than to her father. Yet TP has an equally close, loving, and strong relationship with her father, with whom she lives half of the time. Mr. F has a strong loving relationship with TP and TP is happy when in her father’s care.

A different relationship with each parent does not mean that TP loves one parent more than she loves the other or that she is not equally attached to both parents. [ 176 ] Counsel for Ms. F suggests that the evidence demonstrates that TP identifies with her mother and her mother’s family more closely than with her father and his family. There is no question that Ms. F is a committed and devoted mother to TP. In her current position as a stay-at-home parent, she has the time and energy to focus primarily on TP.

It is uncertain how the proposed move to Istanbul and assumption of a new career and full-time employment will affect the mother/daughter relationship. [ 177 ] Mr. F works full-time in a demanding position, which is unlike Ms. F at present. Despite his work commitments, Mr. F has taken considerable care to ensure that TP is his highest priority during the times that she is in his care. Mr. F explained that he has managed and structured his work and social obligations so that he is consistently with TP when she is living with him. Mr. F makes his time with TP his priority. Mr.

F has been very much involved in his daughter’s life. Both Mr. F and his partner MW testified to the integral importance of TP and E in their family life. They are both devoted to creating a positive, structured, loving, and family-focused environment for both girls. [ 178 ] MW is also respectful of Ms. F as TP’s mother. She has not sought to interfere with or usurp that role. [ 179 ] I conclude that both parents play a significant parental role in TP’s life, with the result that TP is bonded to both her parents.

I also note that parent/child relationships are fluid and ever-changing, especially as a child enters the turbulent adolescent years.

It would not be unusual for TP to feel closer to her mother than to her father, or to feel closer to her father than to her mother, depending on the family dynamics at the time. [ 180 ] In view of the existing parenting arrangements and parent/child relationships, I find that it will be a significant adjustment for TP: (1) to be separated geographically from, and to no longer live with, either her mother or her father; and, (2) to see only periodically the parent whose role will change from a primary care giver to that of an access parent. [ 181 ] This factor favours neither parent. ii.

Maximizing Contact between the Child and Both Parents [ 182 ] The courts recognize that a move by one parent to a location away from the other parent will inevitably result in one parent having reduced contact with the child. Recognizing this inevitability, an important consideration is the ability or willingness of the custodial parent to carry out a parenting plan that will maximize, to the extent possible, contact between the child and the access parent. [ 183 ] TP currently spends substantial time with each of her parents, which cannot continue once Ms. F moves to Istanbul.

If TP is permitted to move to Istanbul with Ms. F, there will be a significant negative impact on and reduction in Mr. F’s time with TP, who currently parents TP for half of the time. Likewise, if TP remains living in Calgary, the same negative impact and reduction in parenting time will be experienced by Ms. F.

While both parents’ plans for access are reasonable, it is an unfortunate certainty that the result will be the non-custodial parent losing much of their time with TP and their practical ability to parent her effectively. [ 184 ] Whether TP lives in Istanbul or Calgary, access to the non-custodial parent will probably present many logistical and practical challenges given TP’s

schedule and activities, her developmental changes, and the distance, cost, and time to travel. To ensure maximum contact possible with TP, the access parent will largely have to rely on the goodwill of the custodial parent to exercise his or her best efforts to facilitate and ensure court-ordered access. [ 185 ] This factor is particularly important in this case because Ms. F will be residing in Turkey, a foreign country. While Turkey is a signatory to and compliant with the Hague Convention, if Ms. F were inclined not to adhere to court-ordered access, Mr.

F would likely experience costly and time-consuming efforts to enforce his Alberta court-ordered access rights. [ 186 ] Notwithstanding Ms. F’s assurances that she appreciates the importance of TP’s relationship with her father and that she would

encourage that relationship following her move to Istanbul, I have reservations about her goodwill and stated intentions. I am not convinced, based on her past actions, that Ms. F would remain committed to facilitating Mr. F’s access to TP and to ensuring maximum contact between father and daughter. [ 187 ] My reservations stem partly from Ms. F’s consistent resistance to Mr. F’s attempts to have more time with his daughter. Mr. F had to take court action to gain parenting time with TP, including the current equal shared parenting regime. Indeed, Ms.

F’s current parenting proposals would alter the current equal shared parenting regime by scaling back Mr. F’s time with TP, whether TP remains living in Calgary or relocates to Istanbul. [ 188 ] I took note that Ms. F falsely alleged that Mr. F might have been sexually inappropriate with TP and one of her friends, an allegation made in an affidavit that Ms. F swore in connection with an application seeking approval to travel with TP to Turkey.

Such an allegation may well prompt the Turkish courts to undertake a best interests assessment of TP, if custody became an issue while TP was in Turkey with her mother. [ 189 ] Further note was taken of Ms. F’s attempt during one of these travel approval applications to have Justice Jeffrey delete from an order the provision that stated that Alberta courts were to retain jurisdiction over TP. [ 190 ] I also noted Ms. F’s responsibility for creating the confusion with TP over the month (July or August) that they would travel to Turkey in the summer of 2015.

This confusion may well have created or contributed to the conflict that arose between TP and her father during that spring and summer. I am hopeful that this decision will eliminate any conflict that arose from the parties’ issues regarding travel to Turkey. [ 191 ] Finally, I am particularly troubled by the manner and tone of Ms. F’s response when she was asked during cross-examination to describe how she valued Mr. F’s role as TP’s father and their father/daughter relationship. Ms. F responded hesitantly that she supported TP’s relationship with her father tremendously because Mr. F was TP’s father.

When pressed further, Ms. F responded that the benefits she saw to TP in having Mr. F as her father and in her life was that he is a playful and active father with TP and that TP never questions that her father loves her. Ms. F concluded that this was all she could come up with for with respect to what Mr. F offered to TP in his role as her father. Ms. F’s response is hardly a sound endorsement of her recognition of the importance of the father/daughter relationship between Mr.

F and TP, and the benefit that TP receives from having a committed and loving father in her life. [ 192 ] I do not have the same reservations about Mr. F. Mr. F was more positive in recognizing the importance of TP’s relationship with her mother and Ms. F’s parenting. Mr. F was complimentary about Ms. F as a mother to TP and acknowledged the close relationship between mother and daughter. Mr. F believed that he and Ms. F functioned well parenting together, although he believed that Ms. F continued to have difficulties accepting shared parenting of TP. [ 193 ] In my view, Mr.

F would remain committed to providing quality access to Ms. F to ensure maximum contact between TP and her mother. Ms. F would also have the assurance that there would be enforcement of court-ordered access in Alberta. [ 194 ] Technological advancements such as Skype and Facetime now permit real-time visible and personal contact between the non- custodial parent and child. This daily face-to-face contact provides a parent during their non-parenting time with meaningful face time with their child. [ 195 ] This factor favours Mr. F as the custodial parent. iii. The Views of the Child [ 196 ] Ms.

F contends that, notwithstanding her age, TP’s expressed wishes to move to Turkey and to be with her mother should be given some consideration and weigh in favour of the conclusion that it is in TP’s best interests to move to Turkey with her mother. [ 197 ] A close review of TP’s views expressed to Ms. Sheldon in 2014, and more recently to Dr. Pezzot-Pearce, indicates that TP does not have a strong preference as to where she would like to live.

TP has vacillated in her expressions of preference between moving to Turkey with her mother and remaining in Calgary, changing her mind on the issue, even during the course of the interviews. It is unclear to me whether TP would like to move to Turkey or merely to visit Turkey. [ 198 ] The evidence of TP’s views suggests to me two conclusions. First, that TP will be prepared to go along with whatever decision is made for her; she simply wants her parents to be happy.

Second, TP is not certain herself whether she wants to move to Turkey to live or whether her preference is to have regular visits to Turkey. [ 199 ] A move of this magnitude would create a mix of emotions for any child, including excitement, sadness, fear, and uncertainty. I

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