AA v JA, 2017 ABQB 19

Court of Queen’s Bench of Alberta Citation: AA v JA, 2017 ABQB 19 Date: 20170519 Docket: 4803 165061 Registry: Edmonton Between: AA Applicant - and - JA Respondent Corrected judgment: A corrigendum was issued on May 12, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] This is a mobility application.

AA (the Mother) applied to move from Edmonton to Lethbridge with SA, the child of her marriage with JA (the Father). The Father opposed the application and cross-applied for primary residence of SA and sole day-to-day decision making respecting SA. The Father also cross-applied respecting payment of certain s. 7 expenses by the Mother. I had granted an Oral Hearing Order permitting the viva voce evidence of the Mother and the Father over two days (two hours chief, two hours cross for each) respecting the following issues: whether the mother is permitted to relocate the child; the parenting

schedule that is in the best interests of the child; the decision-making regarding the child between the parties; and determination [of] retroactive and ongoing child support. Evidence was taken over five days in October, 2016. The parties were the only witnesses. No expert evidence was tendered respecting the parties’ strengths or weaknesses as parents or respecting the impact on SA of disruption to the relationship with either parent.

The parties submitted written argument. [ 2 ] Following a brief overview of the background to the issues, I will consider the Mother’s mobility application, the Father’s cross-application respecting the change in custody, then the Father’s cross-application respecting s. 7 expenses. [ 3 ] For the reasons and on the terms that follow,

(

a) the Mother’s mobility application is denied; (

b) the Father’s cross-application application for immediate primary residence and primary day-to-day decision making for SA is denied; (

c) the Father’s cross-application respecting child care expenses for the Ellerslie day home is granted as indicated below. Table of Contents I. Background . 3 II. Mother’s Mobility Application . 4 A. Legal Principles . 4 B. Assessment 9 1. Status of Interim Orders . 9 2. Facts and Credibility . 9 3. Inconsequential Factors . 11 (

a) Views of the Child . 11 (

b) Co-Sleeping . 12 (

c) Disagreements . 13 4. Community and Family Factors . 13 (

a) Removal from Community . 13 (

b) Removal from School 13 (

c) Removal from Family . 13 (

d) Removal from Sibling . 14 5. SA’s Relationship with the Father and the Mother 16 (

a) The Father and Mother as “Custodial” or “Access” Parents . 16 (

b) Relationship of SA and the Father 19 (

i) Time Line and Court Orders . 19 (ii) The Father’s Account of His Relationship with SA .. 20 (iii) The Father’s Credibility . 21 (iv) The Mother’s Account of the Father’s Relationship with SA .. 22 (

v) The Mother’s Credibility respecting the Father’s Relationship with SA .. 23 (vi) The Father’s Actual Relationship with SA .. 27 (

c) Relationship of SA and the Mother 27 6. Relation between the Mother and the Father respecting SA: Communication, Cooperation, and Coordination 28 (

a) Denying Contact 28 (

b) Delay in Providing Information Facilitating Contact 29 (

c) Delay in Providing or Failing to Provide Information about SA .. 29 (

d) Unilateral Decisions . 30 (

e) Significance . 31 7. The Mother and Court Orders . 31 8. The Mother’s Reason for Moving . 32 9. Proposed Contact with the Other Parent 35

10. Conclusion on the Mobility Application. 36 III. Consequences of Dismissal of the Mother’s Mobility Application. 37 IV. Father’s Custody Cross-Application. 38 V. Father’s

Section 7 Claim.. 39 A. Suitability of the Ellerslie Day Home. 40 B. Cost of the Ellerslie Day Home. 41 1. Full-Time vs. Part-Time. 41 (

a) Part-Time Enrollment at the Day Home. 41 (

b) Entitlement Not to Work. 42 2. The Mother’s Means. 43 (

a) Child Care Subsidy. 43 (

b) Capacity to Find Work. 44 (

c) Imputing Income to the Mother 45 C. Amounts Owing by the Mother for Childcare Expenses. 46 D. Stay of Enforcement of Arrears. 46 VI. Costs. 47 I. Background [4] AA and JA were married in October 2011. They separated about a year and nine months later, on July 28, 2013. They weredivorced in July 2015. [5] SA is the sole child of the marriage, born in March 2012. At the time of the hearing, she was about 4½ years old. [6] The Mother and the Father lived in Edmonton during the marriage.

Both lived in Edmonton since the separation, except thatthe Mother recently moved to Leduc. [7] The Mother has family in Lethbridge. She frequently travelled to Lethbridge with SA during and after cohabitation with theFather. [8] When the parties separated, the Mother left the matrimonial home with SA. In the period shortly after separation, the Fatherhad limited access to SA.

The Father’s access to SA was regularized by the Interim Without Prejudice Order of Justice R Brown (as hethen was) of October 30, 2013 (the Justice Brown Order), which established access on a four-week rotational schedule. [9] The Order of Justice Ross of April 8, 2014 (the Justice Ross Order) established shared parenting of SA by the parties andconfirmed the parties’ joint custody of SA. [10] The Order of Justice Yungwirth of March 20, 2015 (the Justice Yungwirth Order) provided that SA shall be enrolled in theEllerslie day home and that neither party shall remove SA from this childcare without prior agreement or further order. [11] The Order of Justice Simpson of January 18, 2016 (the Justice Simpson Order) provided that the Mother shall pay to theFather her proportionate share of childcare costs for SA and adjourned the Father’s application for retroactive s. 7 expenses sine die. [12] The Mother plans to move into a home owned by her mother in Lethbridge and to find work in Lethbridge. [13] The Father has a son, L, who is a child of his previous relationship with C.

At the time of the hearing, L was about 10 yearsold. The Father has regular access to L, at times when he has access to SA. II. Mother’s Mobility Application A.

Legal Principles [14] It was conceded that the Mother’s move to Lethbridge would be a material change of circumstances, as contemplated by s. 17of the Divorce Act warranting reconsideration of the custody and access or parenting arrangements set by the Justice Ross Order:Gordon v Goertz, (SCC), [1996] 2 SCR 27, McLachlin J, as she then was, at para 14. [15] Under s. 17(5) of the Divorce Act, “in making the variation order, the court shall take into consideration only the best interests

of the child as determined by reference to that change.” Further, s. 17(9) provides as follows:

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact. [ 16 ] Under s. 17(6), (6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

Under s. 16(9), (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. [ 17 ] My task is to determine the best interests of SA in light of the Mother’s proposed move to Lethbridge and the evidence before me. The Mother did not bear the burden of proving that this change would be in SA’s best interests.

As Justice McLachlin wrote in Gordon v Goertz at para 47 : The parent seeking the change bears the initial burden of demonstrating a material change of circumstances. Once that burden has been discharged, the judge must embark on a fresh inquiry in light of the change and all other relevant factors to determine the best interests of the child. There is neither need nor place to begin this inquiry with a general rule that one of the parties will be unsuccessful if he or she fails to satisfy a specified burden of proof.

The parties’ duty was to tender the evidence that permits my determination of SA’s best interests. In the words of Justice Yamauchi in RKC v GSA , 2012 ABQB 614 at para 230 , [230] The Supreme Court of Canada said that both parties should bear the evidential burden of showing where the child’s best interests lie: Gordon at para 29. This is as it should be, because the parties’ respective roles are to assist the Court in making the correct decision. One parent should not have to bear the burden of proving that unless a certain state of affairs exists, they will lose the primary residential care of the child.

The court must start with a blank canvass and attempt to paint the picture of the child’s best interests using the facts as the colours it adds to its palette. [ 18 ] No presumptions guide the assessment of SA’s best interests. The Court of Appeal has confirmed that “[t]he sole determinant is the best interests of the child:” Cavanaugh v Balkaron , 2008 ABCA 423 at para 12 . There is no presumption in favour of the “status quo”: Botticelli v Botticelli , 2009 ABQB 556 , Veit J at paras 17 – 21.

There is no presumption in favour of the “custodial” parent: DM v JS , 2016 ABQB 268 , Ross J at para 22, affd, sub nom MacElheren v Skillings , 2016 ABCA 346 ; Gordon v Goertz at para 49 . There is no presumption in favour of maximum contact between SA and both parents: MacElheren v Skillings ; Rensonnet v Uttl , 2016 ABQB 95 , Poelman J at paras 200 – 203, affd 2016 ABCA 196 at para 22 . There is no presumption that a move is not in a child’s best interests: McAlpine v Leason , 2016 ABCA 153 at para 11 . Neither, then, is there is a presumption that a move is in a child’s best interests.

A mobility order should not be granted just because the primary-residence parent applies for it. [ 19 ] Justice McLachlin set out the main factors for adjudicating mobility applications in Gordon v Goertz at para 49 : More particularly the judge should consider, inter alia : (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. The “ inter alia ” is important. The listed factors are not exhaustive. Additional factors particular to particular parents and particular children may require consideration. [ 20 ] These factors must be assessed in relation to all the relevant circumstances, not simply by reference to the change in circumstances, as might be suggested by s. 17(5) of the Divorce Act . Justice McLachlin clarified this point in Gordon v Goertz at para 18 : 18 Section 17(5) of the Divorce Act directs that the judge must consider the child’s best interests “by reference” to the material change in

circumstances. However, the inquiry cannot be confined to that change alone, isolated from the other factors bearing on the child’s best interests. In Willick v. Willick , supra , L’Heureux-Dubé J. discussed (at pp. 734-35) the scope of review of support orders in the context of similar wording in s. 17(4): Once a sufficient change that will justify variation has been identified, the court must next determine the extent to which it will reconsider the circumstances underlying, and the basis for, the support order itself.

For the reasons below, I believe that it is artificial for a court to restrict its analysis strictly to the change which has justified variation.

Moreover, while a variation hearing is neither an appeal nor a trial de novo, where the alleged change or changes are of such a nature or magnitude as to make the original order irrelevant or no longer appropriate, then an assessment of the entirety of the present circumstances of the parties and the children which recognizes the interrelationship between the many factors to be considered is in order. [Emphasis added.] The same principle holds true when an applicant is able to demonstrate a material change in circumstances in a custodial variation proceeding.

In order to determine the child's best interest, the judge must consider how the change impacts on all aspects of the child's life. To put it another way, the material change places the original order in question; all factors relevant to that order fall to be considered in light of the new circumstances. [ 21 ] A mobility adjudication must accord with three principles confirmed by the Court of Appeal. First, a custodial parent has the right to move. According to the Court of Appeal in MacPhail v Karasek , 2006 ABCA 238 at paras 44 and 45 , [44] …..

Canadians are mobile and the courts are not the arbiters of the reasonableness of every decision a custodial parent makes. Custodial parents cannot be held hostage to the place the access parent lives. Certainly access parents are not.

Moreover, it is not an option to conclude that a child’s best interests are best served by both parties living in the same place any more than it is an option to consider that it is in a child’s best interest that their parents remain together. [45] Canadians have the right to choose to separate and divorce, and they have the right to relocate, and it is not for the courts 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: see also Sangha v Sandhar , 2013 ABCA 259 at para 2 . But while a custodial parent has the right to move, that does not (or does not without more) entail the right to move with the child of the marriage. Whether or not the child should move with the custodial parent depends on the assessment of the child’s best interests.

Put another way, not the parent’s interests, but the child’s interests govern the mobility issue. [ 22 ] Second, it is an error in principle to fail to address the extent to which a child may have bonded with the parent in whose “primary care” the child has been since birth: Milton v Letch , 2013 ABCA 248 at paras 14 and 15 . In DLW v HAD , 2015 ABCA 203 , Justice Topolniski’s Special Application reasons were quoted and her findings were upheld.

She is quoted at para 3: “A key consideration in these cases is the importance of the child remaining with a parent to whose custody the child has become accustomed and weighing that against continuance of full contact with the child’s effective access parent, its extended family and its community ….” She added: “And do think about the bond between parent and child, and the effects separation might have upon the child if primary care was awarded to the parent who had not previously been the primary caregiver.

It is clear from the case authorities that where one parent has assumed a greater role in caring for the child, Courts must consider the impact on the child of making any change to the parenting arrangement….” and at para 6: The existing custody and access arrangement, the ability to maximize contact and the status quo, the mother has been the child’s primary caregiver since birth. There is no question of that. She is the constant…. Proper attention to the extent of bonding with a “primary care” parent does not create a new presumption.

Rather, it is evidence, a factor to be considered: Rensonnet v Uttl at para 207 (QB); Ackerman v Ackerman , 2014 SKCA 86 at para 32 . [ 23 ] Third, not only must the effects on the child of maintaining the status quo or moving with the custodial parent be considered; the effects of the child not moving with the custodial parent must be considered (three situations, not merely the first two, must be considered).

The Court of Appeal emphasized this point in McAlpine v Leason at para 6 : [6] The main error here is a variant of the analytical problem identified by this Court in Christmas v Christmas , 2005 ABCA 213 , 367 AR 172, Spencer v Spencer , 2005 ABCA 262 , 257 DLR (4th) 115 and RJF v CMF , 2014 ABCA 165 , 575 AR 125. This Court has repeatedly cautioned against approaching the best interest test by comparing the effect on children if they are permitted to relocate with the custodial parent versus maintaining the status quo (i.e. the children remaining with the custodial parent in their current location).

Approaching the issue in that manner ignores a key component of the Gordon v Goertz ... test – the effect of removing the child from the care of his or her primary caregiver after that parent moves. [ 24 ] Finally, a mobility adjudication must take into account the “friendly parent principle” described by Justice Sheila Martin, as she then was, in RVM v WFL , 2009 ABQB 138 at para 86 : [86] Maximum contact with both parents is to be encouraged, and under s. 18(2)(b)(viii)(B) [of the Family Law Act ], the courts are likely to favour the friendly parent, that is the parent who will help to encourage contact between the child and the other parent.

The “friendly parent rule” ( s. 16(10) of the Divorce Act , R.S.C. 1985, c. 3) has served to favour parents who are best able to foster a relationship

between the child and the non-custodial parent: Ganden v. Kovalsky, 2003 ABQB 20, Zambonelli v. Zambonelli, 2002 ABQB 917....

In ADM v SWL, 2015 ABQB 630, revd sub nom McAlpine v Leason, without reference to this point, Justice Jones stated the followingat para 138: [138] In Towell Lee J, relying on Moen J’s decision in TS v AVT, 2008 ABQB 185, held at para 46 that whether the residential parentwill encourage the child to have frequent contact with the other parent and their family is a very important factor in any mobility case .... [25] Both the Divorce Act and Gordon v Goertz confirm the importance of cooperation and, implicitly, communication, by theprimary-residence parent with the access parent.

Subsection 17(9) of the Divorce Act provides that

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage shouldhave as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where thevariation order would grant custody of the child to a person who does not currently have custody, the court shall take into considerationthe willingness of that person to facilitate such contact [emphasis added]. Subsection 16(10) is similar:

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as muchcontact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration thewillingness of the person for whom custody is sought to facilitate such contact.

When commenting on these provisions in the mobility context, Justice McLachlin wrote that “[t]he sections go on to say that for thispurpose, the court ‘shall take into consideration the willingness of [the applicant] to facilitate’ the child’s contact with the non-custodialparent:” Gordon v Goertz at para 24. B. Assessment 1. Status of Interim Orders [26] Because the parties testified in this hearing, I was able to assess the parties’ credibility. Further, I was entitled to revisit thefindings of prior orders that were based on affidavit evidence: Hartley v Del Pero, 2010 ABCA 182 at para 9. 2.

Facts and Credibility [27] While no party bears the burden of proof on the issue of SA’s best interests in light of the proposed move, her best interestsmust still be determined on the facts.

Those facts must be decided on the civil standard of balance of probabilities: FH v McDougall,[2008] 3 S.C.R. 41, 2008 SCC 53, Rothstein J at paras 40 and 49. [28] If, as in this case, the parties’ testimony about the facts conflicts, the determination of the facts will turn on findings ofcredibility, encompassing a witness’s veracity or sincerity (“credibility” properly speaking) and the reliability or accuracy of thewitness’s testimony: R v Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193, Doherty JA at 205. [29] In assessing the parties’ credibility, I have taken into account the stresses of testifying, and the natural accumulation ofmisstatements and inconsistencies consequent on the filing of multiple affidavits concerning multiple issues for multiple applicationsover multiple years.

Further, I appreciate that witnesses in the position of the parties are inclined to magnify both their own virtues andthe other party’s faults. Excessive scrupulousness in assessing testimony would be unfair to human nature and would likely obstructtruth-finding. Yet tolerance for evidential weakness must have limits. Significant errors and distortions undermine credibility. [30] I have considered inconsistencies in the witnesses’ evidence. Justice Rothstein’s decision in FH provides useful guidancerespecting the effect of inconsistencies on the assessment of credibility.

Justice Rothstein writes as follows at paras 57 and 58: [57] At para. 5 of her reasons, the trial judge had regard for the judgment of Rowles J.A. in R. v. R.W.B. (1993), 24 B.C.A.C. 1, at paras.28-29, dealing with the reliability and credibility of witnesses in the case of inconsistencies and an absence of supporting evidence.

Although R.W.B. was a criminal case, I, like the trial judge, think the words of Rowles J.A. are apt for the purposes of this case: In this case there were a number of inconsistencies in the complainant’s own evidence and a number of inconsistencies between thecomplainant’s evidence and the testimony of other witnesses. While it is true that minor inconsistencies may not diminish the credibilityof a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt aboutthe reliability of the witness’ evidence.

There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least thetrier of fact should look to the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable.

This isparticularly so when there is no supporting evidence on the central issue, which was the case here. [para. 29] [58] As Rowles J.A. found in the context of the criminal standard of proof, where proof is on a balance of probabilities there is likewiseno rule as to when inconsistencies in the evidence of a plaintiff will cause a trial judge to conclude that the plaintiff’s evidence is notcredible or reliable.

The trial judge should not consider the plaintiff’s evidence in isolation, but must look at the totality of the evidenceto assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in thecase. [31] I have also considered the natural probabilities surrounding parenting and marital relationships, conscious as I must be of theinherent variety of human relationships. I continue to be guided by the decision of Justice O’Halloran in Faryna v Chorny, 1951

252 (BC CA) , [1952] 2 D.L.R. 354, 1951 CarswellBC 133 (BCCA) at para 10 (CarswellBC): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [ 32 ] Justice Rothstein confirms in FH at para 86 that finding a witness’s testimony credible may entail the rejection of another witness’s competing testimony: [86] However, in civil cases in which there is conflicting testimony, the judge is deciding whether a fact occurred on a balance of probabilities.

In such cases, provided the judge has not ignored evidence, finding the evidence of one party credible may well be conclusive of the result because that evidence is inconsistent with that of the other party. In such cases, believing one party will mean explicitly or implicitly that the other party was not believed on the important issue in the case. That may be especially true where a plaintiff makes allegations that are altogether denied by the defendant as in this case.

W. (D.) is not an appropriate tool for evaluating evidence on the balance of probabilities in civil cases. [And indeed, in criminal cases too, the reasoned acceptance of a complainant’s account of a disputed transaction may eliminate inferences of reasonable doubt based on even the plausible and unshaken testimony of an accused: R v Vuradin , 2013 SCC 38 , [2013] 2 SCR 639 at para 19 ; R v Gordon , 2015 ABCA 341 at para 22 .] [ 33 ] Finally, I have kept in mind that I may accept all, some, or none of a witness’s testimony: R v JHS , [2008] 2 SCR 152, 2008 SCC 30 at para 10 . [ 34 ] There were flaws in each party’s testimony.

The testimony of each was weakest, most exaggerated, most prone to inconsistency when attacking the other. As Justice Rothstein indicated in FH , credibility should be assessed cumulatively and weaknesses in credibility in one area may undermine credibility in another. Nonetheless, I have found that on some issues, the testimony of one party was convincing; on another issue, that party’s testimony was not. This approach makes sense in context.

My overall impression was that this litigation was between two people who were trying to be good parents, who, despite their conflicts, were trying to promote the best interests of SA. Neither had an exclusive claim on truth and right. [ 35 ] I reject the argument of counsel for the Mother that the Father’s evidence should be given no weight. I considered the “contradictions” elaborated in her Closing Statement at pp. 10 – 15. I will not review elements of the argument in detail. In some instances, what were identified were not contradictions but inferences or

interpretations of language urged by counsel different than those adhered to by the Father (immunization, dedication, moves of the Mother, SA’s removal from day home, SA’s removal from downtown daycare). In some instances actual contradictions involved absolute language in an affidavit that was corrected and qualified in testimony (morning routine, co-sleeping, medication). None of those discrepancies was, in my opinion, significant. [ 36 ] With this orientation to credibility in hand, I turn to the application of the Gordon v Goertz factors and additional factors to the evidence before me. 3. Inconsequential Factors (

a) Views of the Child [ 37 ] Gordon v Goertz indicates that the views of the child should be considered. That factor requires qualification. The Family Law Act does not apply, but s. 18(2)(b)(iv) encapsulates the appropriate and more nuanced approach: “In determining what is in the best interests of a child, the court shall ... consider all the child’s needs and circumstances, including ... the child’s views and preferences, to the extent that it is appropriate to ascertain them ” (emphasis added). [ 38 ] At the time of the hearing, SA was only 4 ½ years old. She was not represented by counsel.

No “voice of the child” report was filed. No expert evidence was submitted respecting her needs. She was too young to provide her views or for her views to be ascertained. [ 39 ] I do not accept the communication of her alleged views through the Mother. The Mother testified to SA’s unhappiness when the Father exercised access – or more accurately, before access, during exchanges, and after access. The Mother was providing evidence to support the inferences that SA did not want to go with the Father and that her attachment to the Mother was so strong that separation from the Mother was traumatic.

The Mother had no direct knowledge of how SA behaved while with the Father alone. The Father acknowledged that SA did sometimes cry during pick-ups. His testimony was that the only times she was really upset were after changes in her routine. He testified that she settled down quickly and that their time together was fine. [ 40 ] The Mother did testify that – to her credit - she tried different means for making transitions easier. [ 41 ] I find that the Mother’s account is part of her general attempt to characterize herself as the sole appropriate caregiver for SA and to minimize the Father’s role as a caregiver.

For reasons to be elaborated below, I find her testimony exaggerated and the inferences to be drawn from it unlikely. The Father has exercised increasing access time with SA since separation, leading to the shared custody dictated by the Justice Ross Order. Exchanges have been taking place for over three years. The Mother proposed significant holiday time for SA with the Father if she moves with SA.

Were she actually to anticipate trauma to SA because of separation, the Mother would have been unlikely to have made such a proposal. [ 42 ] In any event, there is no reason in theory or on the evidence precluding SA from having an “attachment” to two parents. [ 43 ] SA has been caught in the conflict between two parents since she was a little over a year old. Exchanges must have been

painful, unsettling, and frightening for her. That is entirely explicable without the need to draw any inference of lack of attachment to the Father or any inference that her attachment to the Mother somehow precludes happy parenting time with the Father. That she cried on some occasions is no surprise and not, in my estimation, a basis for an inference that her contact with her Father should be reduced through a move. (

b) Co-Sleeping [ 44 ] A point of contention between the parties during cohabitation and after separation, emphasized during the hearing, concerned “co-sleeping” – i.e., SA sleeping in the same bed with her parents or with the Mother post-separation. The Father opposed co-sleeping. When SA has been with him post-separation, she has slept in her own bed. The Mother co-sleeps with SA.

No expert evidence was tendered respecting the benefits or risks of co-sleeping or respecting the scientific literature supporting co-sleeping or the related topic of “attachment parenting.” I cannot take judicial notice that co-sleeping, considered by itself, is harmful or beneficial (so long as additional factors, such as non-parental males sleeping in the same bed as SA are not taken into account). I draw no adverse inference against the Mother because she is a proponent of co-sleeping or against the Father because he is an opponent of co-sleeping.

Parents sometimes disagree about practices they consider beneficial or harmful for their children. The parties had such a disagreement. This is not a disagreement of a nature that would compel the Court to intervene in the exercise of its parens patriae jurisdiction. [ 45 ] The Father was caught in an inconsistency respecting co-sleeping. In a July 7, 2016 affidavit at paragraph 13, he asserted that SA never co-slept with the parties when they were together.

In contrast, he testified that SA did sleep in the same bed as her parents when she was very young (to similar effect was an assertion in an April 3, 2014 affidavit at paragraph 24). I find this inconsistency to be inconsequential respecting an inconsequential matter. The assertion in the July 7 affidavit was not likely on its face. I doubt whether any parents have never slept in the same bed as their new baby. My suspicion is that the assertion was a drafting error. Regardless, the Father’s testimony in the hearing was accurate. He came forward with the concession in examination in chief. (

c) Disagreements [ 46 ] The parties disagreed respecting Choice Daycare and suppositories for SA, and did not have a meeting of the minds respecting medications for an infection that SA suffered. Unless otherwise noted below, I have found that these and connected matters warrant no further consideration. The parties also explored other grievances in testimony and submissions. I shall not comment on all aired disagreements, disputes, misunderstandings, and miscommunications between the parties, but only on those that have a non-trivial bearing on the mobility application and the cross-application. 4.

Community and Family Factors [ 47 ] Gordon v Goertz collects several factors under the following heading: “disruption to the child consequent on removal from family, schools, and the community he or she has come to know.” [ 48 ] In the circumstances, some of the factors collected under this heading play no role in the resolution of the mobility application while others are significant, even if not decisive. (

a) Removal from Community [ 49 ] It is true that SA has resided in Edmonton (or the Edmonton area) for her whole life. But again, she is not yet 5 years old. She has already moved several times in Edmonton and with her Mother to Leduc. The evidence did not disclose a close relationship between SA and any neighborhood in Edmonton. She has been enrolled in swimming and gymnastics, but little evidence was provided about these activities.

Given her age, she cannot have been associated for a long time with these clubs, and young children frequently switch swimming and gymnastics clubs. [ 50 ] Further, she has travelled to Lethbridge frequently since she was about a month old. Her grandmother’s house would not be a strange location to her. [ 51 ] I find that moving from Edmonton would not, by itself, cause disruption to SA. (

b) Removal from School [ 52 ] SA is not yet in school. One of the themes of the hearing was her transition through a series of different day homes and day cares. She has been attending the Ellerslie day home for over a year, in accordance with the Justice Yungwirth Order. However, she attends this facility only once or twice per week. The evidence did not disclose that SA had any good friends at this day home. [ 53 ] I find that moving from her current day home would not, by itself, cause disruption to SA. (

c) Removal from Family [ 54 ] Of greater significance is that a move from Edmonton would reduce SA’s contact with the Father’s extended family. The Father’s grandfather, cousins, step-brother, and sister live in the Edmonton area. SA and her Father get together with his family for dinners and religious celebrations. SA visits her great-grandfather regularly. While the parties were together, the Mother ensured that SA was in contact with the Father’s family.

The Mother (more often, it appears, than the Father) met weekly with the Father’s grandparents on Sunday mornings for breakfast at the former Zellers restaurant at Meadowlark Mall and went with members of the Father’s family on shopping expeditions. The Mother took SA to gatherings of the Father’s family, even after the separation. The separation, as separations do, occasioned some awkwardness. As of 2015 the Mother no longer sees members of the Father’s family. [ 55 ] A move to Lethbridge would reduce SA’s time with the Father’s family. There would be an element of loss to SA.

[ 56 ] A connected loss to SA would be cultural and religious. The Father and members of his family are Jewish. SA has attended religious celebrations with the Father’s family. The Mother is Christian but strongly supported SA’s connection with her Jewish heritage, taking SA to family religious celebrations both during and after separation until 2015. It would be expected that, despite the Mother’s good will in this regard, SA’s connection with her Father’s faith would be diminished by a move to Lethbridge. [ 57 ] This factor or set of factors would count against SA’s move from Edmonton. (

d) Removal from Sibling [ 58 ] Of greatest concern under this Gordon v Goertz heading is that a move from Edmonton would decrease SA’s contact with her half-brother L. Contact with L was contemplated by the Mother’s plan, which will be reviewed below, but the realities of L being in the primary care of C, being in the Father’s care at only specific times, and distance and inconvenience could not but reduce sibling contact. [ 59 ] At the time of the hearing, L was about 10 years old.

He resides primarily with C in Edmonton but resides with the Father three weekends per month, on holidays, and during summer vacation. L has been involved in SA’s life since SA was born. In RJF v CMF , 2014 ABCA 165 at paras 43 and 44 , the Court of Appeal confirmed that due consideration must be given to a child’s relationship with a sibling and to the disruptive effects of separation on that relationship: [43] The appellant submits the trial judge erred by failing to consider, or to give sufficient weight to, the child’s relationship with his half-brother and the effect of separation on that relationship.

The need to consider this factor was set out in MacPhail at para 33 . The court, having already found the trial judge had not addressed the extent to which the child had bonded with his mother, stated: [The trial judge] also failed to address the effect of separating Venture from her older sister, Saylor. While Venture also had step-siblings in Medicine Hat, she had lived with Saylor from birth.

The trial judge, therefore, should have weighed the effect of separating the two girls in assessing Venture’s best interests. [44] In this case, the child had a younger brother with whom he had lived since the younger child’s birth, being almost three years by the time of trial. The trial judge ought to have considered the effect of separating the two boys on the child in assessing his best interests. He did not do so.

His comment regarding the child’s relationship with his half-brother was included in his comment with respect to the mother, to the effect that if the child lived in Calgary he would not see his half-brother as often. Once again, this is merely a statement of the obvious, and does not indicate any consideration for the nature of the relationship between the child and his sibling, nor of the effect of separating the child from his half-brother and his family unit. This too was an error that invites appellate review. [ 60 ] According to the Father, SA and L are very close.

They have an “amazing bond;” “she adores him.” [ 61 ] The Mother sought to minimize SA’s connection to L. She noted that L is 6 years older than SA. When SA was brought home, she was a “novelty” to L, which “wore off in a few hours.” As she got older, she got into L’s stuff and L complained that she was “bugging” him. The Mother testified that L was a “typical older brother.” He was never mean, he was always very tolerant, but he was disinterested; he was at a totally different stage of life.

She claimed that SA and L did not spend much time together. [ 62 ] In contrast, the Mother claimed that SA idolizes a son of a Lethbridge friend, who, like L, is 10 years old. SA sees him when visiting Lethbridge. [ 63 ] Further, the Mother accused L of improprieties. First, she claimed that when L was with his Father, who was changing SA’s diaper, L touched SA inappropriately. Second, the Mother claimed that SA kissed L while they were playing. She did not raise this matter first with the Father, but with C.

Her testimony was that she and C asked the Father to address this but he did not. [ 64 ] I will begin with the alleged improprieties. The Mother did not describe her vantage point from which an accurate observation could have been made respecting the alleged touching. The Father, who was beside L, denied the allegation and stated that L only touched SA’s leg. I disregard the Mother’s claim. The kissing incident was not elaborated. A kiss, by itself, is not alarming. Children do sometimes kiss their parents, siblings, or friends.

There was, for instance, no claim that this behaviour was repeated or had unusual features. Moreover, the Mother herself confirmed that she did not take her concerns directly to the Father. Rather, she contacted his ex- wife. They then confronted the Father. That stratagem was inappropriate if the Mother were truly concerned about SA’s best interests. The natural, obvious, and appropriate step would have been to talk to the Father, the father of both SA and L, about what happened and to work out a way forward with him. On the evidence, nothing had happened that warranted a frontal assault by two mothers.

Not only was the Mother’s response exaggerated, but the inference I draw is that the incident was used to create strife between C and the Father and to solidify a relationship between the Mother and C against the Father. This ambition of the Mother shall be returned to below. I note that the Father’s testimony was that he had been in the room with the children at the relevant time and he had not noticed the alleged event. In my opinion, if the alleged event happened, and the inference that it did is not strong, it was innocent.

I dismiss this alleged incident as in any way undercutting the inference of disruption to SA through the loss of contact with L. [ 65 ] I find that the Mother’s claim about the friend’s 10 year-old son is a contrivance to distract from the issue of disruption to SA through the loss of contact with L.

At the very least, her claim presupposes that a 10 year old boy may have an important role in SA’s life even if that boy is at (what consistency would dictate would be) “a totally different stage of life.” The possibility of relationship is therefore open to L, who, on the evidence, has had contact with SA throughout her life.

I do not entertain the conclusion that the friend’s son would have as an important a role in SA’s life as L, who is, in the Mother’s words, “a typical older brother.” [ 66 ] The Mother has not been present for interactions between SA and L since separation, and lacks a foundation for an opinion respecting their current relationship. [ 67 ] The Father provided a sensible account of any distance in L’s initial attitude towards SA. While L was very excited about the new baby, the Father confirmed that L did go through an “adjustment.” “There was just the two of us. Now there was [SA].” L adapted. He bonded with SA.

[68] Setting aside the Mother’s adverse or minimizing comments about the relationship between SA and L, the following featuresof their relationship are true: L is six years older than SA. He has not lived with SA full-time. They see each other, generally, onweekends (when the Father has his parenting time with L). SA has, though, had a relationship with L since her birth. According to theFather, they have shared activities. L, for example, taught SA to fish. They talk frequently on the phone.

They go with the Father onoutings, such as to the West Edmonton Mall Waterpark. [69] Taking into consideration to the children’s ages and their limited but regular time together, the children’s relationship is not asdeep as it would be were their ages closer and had they lived together in the same family. Nonetheless, relationships fall along gradients.The relationship between L and SA is significant. They are family. He is her big brother. Reducing SA’s contact with L through a moveto Lethbridge would have an adverse effect on SA.

It would be disruptive to her. [70] The Mother’s effort to discredit L as an important part of SA’s life was also significant. In my opinion, the Mother’stestimony about L was part of a larger project to undermine any finding that SA had significant (or safe) connections to the Father. 5. SA’s Relationship with the Father and the Mother [71] More important than SA’s relationship with the Father’s family or with L is SA’s relationship with her Mother and Father.The stronger the relationship between SA and a parent, the greater the adverse impact on her or disruption to her if that relationship wereattenuated.

The weaker the relationship between SA and a parent, the more flexibility is entailed in contact with that parent. I willconsider the relationship between SA and the Father and SA and the Mother. I must first address, though, the parties’ dispute respectingthe “custodial” and “access” parent labels. (

a) The Father and Mother as “Custodial” or “Access” Parents [72] Gordon v Goertz distinguishes between a “custodial” parent (who is proposing to move) and an “access” parent. One featureof the distinction is, as Justice McLachlin put it at para 48, “the views of the custodial parent, who lives with the child and is chargedwith making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration.” [73] The evidential status of “great respect and most serious consideration” is not spelled out in Gordon v Goertz.

The “custodial”parent would have greater observational opportunities respecting the child and would be better placed than the access parent to relateobservations and to provide lay opinion evidence respecting the child’s interests based on those observations. The direction to “respect”the custodial parent’s views should entail both that the foundation for the parent’s views be taken into account and that the custodialparent’s evidence should not be discounted or treated as having reduced weight just because the custodial parent seeks to move.

Thus,Justice L’Heureux-Dubé wrote in Young v Young, (SCC), [1993] 4 SCR 3 at 86: ... [E]xpert evidence should not be routinely required to establish the best interests of the child. In my view, it is a modern day myth thatexperts are always better placed than parents to assess the needs of the child. Common sense requires us to acknowledge that the personinvolved in day to day care may observe changes in the behaviour, mood, attitude and development of a child that could go unnoticed byanyone else.

The custodial parent normally has the best vantage point from which to assess the interests of the child, and thus will oftenprovide the most reliable and complete source of information to the judge on the needs and interests of that child. See RKC v GSA at para 212. [74] A further difficulty is that Justice McLachlin did not elaborate on the “custodial” and “access” parent distinction. Of course,in many cases, distinguishing a custodial from an access parent is straightforward.

Nonetheless, a broad spectrum of time, responsibility,and authority allocations relating to children of the marriage are covered by the “custody” and “access” labels.

The closer parties come toequal allocations of time, responsibility, and authority respecting their children, the weaker the inference that the moving parent’s viewsshould be treated with “greater respect” or more “serious consideration” than the non-moving parent’s views; or, alternatively, thestronger the inference that both parties’ views should be treated with “great respect” and should be given “serious consideration.” The“great respect” and “serious consideration” direction ceases to have any inferential value.

See, for example, the comments of Justice Veitin Hiron v McRae, 2016 ABQB 285 at para 6: [6] The existing parenting regime prior to the removal of the children to Saskatchewan was, essentially one of shared parenting, ratherthan one in which Ms. McRae was the custodial or primary parent; therefore, this is not a situation in which a custodial parent’s viewsare entitled to great respect. [75] In any event, no presumption operates in favour of the custodial parent’s views. Those views do not bind. They have nolegally-enhanced weight.

And respect is accorded custodial parents’ views only “normally” or “in most cases,” not always. The judge,not the custodial parent, has the obligation to determine whether a proposed move is in the best interests of the child based on theevidence. We read the following in Gordon v Goertz at para 44: 44 ... [A] presumption in favour of the custodial parent has the potential to impair the inquiry into the best interests of the child. Thisinquiry should not be undertaken with a mindset that defaults in favour of a preordained outcome absent persuasion to the contrary.

Itmay be that in most cases the opinion of the custodial parent will reflect the best interests of the child. In such cases, the presumptionmight do no harm. But Parliament did not entrust the court with the best interests of most children; it entrusted the court with the bestinterests of the particular child whose custody arrangements fall to be determined. Each child is unique, as is its relationship withparents, siblings, friends and community.

Any rule of law which diminishes the capacity of the court to safeguard the best interests ofeach child is inconsistent with the requirement of the Divorce Act for a contextually sensitive inquiry into the needs, means, conditionand other circumstances of “the child” whose best interests the court is charged with determining .... The inquiry is an individual one.

Every child is entitled to the judge's decision on what is in its best interests; to the extent that presumptions in favour of one parent or theother predetermine this inquiry, they should be rejected .... [see also paras 36, 37, 40, and 42]. [76] Given that no presumption of reliability attaches to the “custodial” parent’s views, whether or not the Mother is labelled the

custodial parent or both the Mother and the Father are labelled custodial parents is not of decisive significance. My concern must be with the best interests of SA on the evidence before me. [ 77 ] Further, the parties disagreed about each other’s degrees of involvement in SA’s life. I must determine their respective roles in SA’s life. My findings are of central importance to the mobility application and the Father’s cross-application. Each party’s actual involvement with SA is important, not what he or she simply happened to think was in SA’s best interests.

My findings about the parties’ roles will illuminate the application of the “custodial” and “access” labels, but with those findings in hand, the distribution of the labels will not add much. [ 78 ] Before proceeding, I must address the approach taken by counsel for the Mother to the application of the “custodial” and “access” parent labels. Counsel correctly pointed out, as will be confirmed below, that from separation and under the Justice Brown Order, SA resided with the Mother most of the time.

In particular, the Justice Brown Order did not establish shared parenting, in the sense of granting the Father access to SA 40% or more of annual time. Counsel relied on the decision of Justice Veit in Jebb-Waples v Waples , 2014 ABQB 26 in aid of an argument that even under the Justice Ross Order, the Father did not have access to SA 40% or more of annual time.

In Jebb-Wapples , Justice Veit stated at para 33 that [33] As distasteful as it may be to engage in what amounts to an accounting for time spent with children, I remain of the view that, in the thankfully relatively few situations where the amount of time each parent has with their children is disputed, the only course is for the court to assess, on an hour by hour basis, which parent is doing what for the children .... and at para 37 that [37] The better approach to determining whether a parent is entitled to the child support analysis that must be undertaken when the 40% threshold is reached is to count actual parenting hours, i.e. hours during which a parent has responsibility for the children and to weigh the parenting responsibilities assumed while one parent has physical custody of a child.

For example, with respect to school age children, the hours spent at school would be calculated according to which parent is the contact for a problem which arises during school hours. I will assume that the Mother was the daycare contact, even during the Father’s parenting time, until SA attended the Ellerslie day home (there was a dispute about the downtown day care’s cooperation in treating the Father as a contact, but I will set that issue aside).

Hence, the argument ran, the Father did not have shared custody even under the Justice Ross Order SA was primarily resident with the Mother, and the Mother was SA’s “custodial parent.” [ 79 ] Jebb-Waples is, in my view, correctly decided and a leading case for determining “shared parenting” under s. 9 of the Federal Child Support Guidelines . Nonetheless, counsel for the Mother’s approach is inappropriate, for two reasons. First, the Jebb-Waples analysis applies if (e.g.) the parties’ conduct or an order does not expressly or implicitly establish a shared parenting regime: Jebb- Waples at paras 31 and 32 .

The Justice Ross Order, though, expressly established a shared parenting regime, using the language of “shared parenting” at paragraphs 18 and 19. No Jebb-Waples analysis, then, is required. Jebb-Waples is distinguishable. Second, the Jebb-Waples analysis concerns the application of s. 9 of the Federal Child Support Guidelines . “Shared custody” (as under the Justice Ross Order) engages specific considerations bearing on the amount of child support payable. The Mother’s application, though, does not concern child support but mobility.

The issue is not the counting of hours for s. 9 purposes, but the role of the parents in SA’s life. The reality is that under the Justice Ross Order and subsequent orders, regardless of who was the contact person for the downtown daycare, both parties had substantial time with SA. That does not mean that they had equal time. [ 80 ] Furthermore, the evidence did not disclose the nature and number of contacts by the downtown daycare with the Mother. SA was at the downtown day care for substantial periods. She has been at the Ellerslie day home for less substantial periods.

Her time under others’ supervision counts neither for nor against SA’s bonding with either parent. A parent does not enhance her or his relationship with a child just by putting her or his name on a contact list. [ 81 ] Counsel for the Mother went on to impeach the basis for the Justice Yungwirth Order. Counsel conceded that once this order was in place, the Father had “shared parenting” for Jebb-Waples purposes. She claimed that the evidence relied on by the Father to obtain this order was “grossly misleading. The Father, then, should not be entitled to rely on this order.

This line of argument is inappropriate for the reasons just canvassed: the issue is not whether the Father had “shared custody” for s. 9 purposes. While the Justice Yungwirth Order was not appealed, no application was made to quash the order or set it aside, and counsel was engaging in a form of collateral attack on the order, I am entitled to come to different conclusions than as set out in the order and if I accepted counsel’s factual claims, that would be important to the assessment of the Father’s credibility both in relation to the mobility application and his s. 7 expenses cross-application.

Counsel’s factual claims are disputed, however. I will return to those claims in

part V.A below. [ 82 ] I turn to my assessment of the parties’ roles in SA’s life, beginning with the relationship of SA and her Father, then the relationship of SA and her Mother. (

b) Relationship of SA and the Father [ 83 ] This assessment goes to the second Gordon v Goertz factor: “(

b) the existing access arrangement and the relationship between the child and the access parent.” I will consider (

i) the time line, as punctuated by court orders; (ii) the Father’s account of his relationship with SA; (iii) credibility concerns respecting the Father; (iv) the Mother’s account of the Father’s relationship with SA; (iv) credibility concerns respecting the Mother; and (

v) conclusions respecting the Father’s relationship with SA. (

i) Time Line and Court Orders [ 84 ] Three periods may be distinguished – the period of cohabitation, the period after separation and before the Justice Ross Order, and the period governed by the Justice Ross Order (April 2014) to date. It is important to review the entire history of care for SA, not just the period since the latest court order: RJF v CMF at para 26 .

[ 85 ] During cohabitation, after SA’s birth, the Mother and the Father were simply SA’s parents. She was in the care of both parents. (Again, the Mother’s role will be reviewed below.) [ 86 ] After separation and before the Justice Ross Order, the primary residence of SA was with the Mother. The Father had limited contact with SA from the date of separation until the Justice Brown Order. This order was put in place about three months after separation. It granted the Father regular access on Mondays and on certain other days: Week 1: Monday at 8:00 a.m. to Tuesday at 8 a.m.

Week 2: Saturday at 5:00 p.m. to Monday at 6 p.m. Week 3: Monday at 8:00 a.m. to Tuesday morning – drop off at daycare Week 4: Saturday at 5:00 p.m. to Monday at 6:00 p.m. Weekly: Wednesday at 6:30 p.m. to Thursday morning – drop off at daycare. [ 87 ] The Justice Ross Order established shared custody in April 2014, less than a year after separation. Under paragraph 7 of the Justice Ross Order, parenting time was established as follows: 7.

The Applicant [the Father] shall have parenting time with [SA] commencing Saturday, April 12, 2014, as follows: Week 1: Monday at 8:00 a.m. until Wednesday at 8:00 a.m. when the Applicant shall drop [SA] off at daycare; Week 2: Saturday at 5:30 p.m. to Wednesday at 8:00 a.m. when the Applicant shall drop [SA] off at daycare; Week 3: Monday at 8:00 a.m. to Wednesday at 8:00 a.m. when the Applicant shall drop [SA] off at daycare; Week 4: Saturday at 5:30 p.m. to Wednesday at 8:00 a.m. when the Applicant shall drop [SA] off at daycare.

The order sets out holiday parenting time and provides for an additional 2 weeks of parenting time for each party. Paragraphs 18 and 19 of the order expressly referred to the parties having shared custody of SA for child support purposes. (ii) The Father’s Account of His Relationship with SA [ 88 ] The Father’s narrative began before SA’s birth, a period not addressed by the Mother. The Father attended prenatal class at a health centre with the Mother, took the Mother to appointments, and developed the baby’s room. [ 89 ] He was present when SA was born and was the first to hold her.

Assisted by a nurse, he gave SA her first bath at the hospital. [ 90 ] The Mother suffered an injury during delivery. The Father spent a few nights at the hospital. He brought SA to the Mother. [ 91 ] The Father’s mother came to help once the Mother and child were discharged. She stayed for two weeks. [ 92 ] The Father took a few days off of work after the birth. He then had to go back to work. He was supporting the family and money was tight.

His mother was there to assist so the Mother was not left on her own. [ 93 ] The Father testified that he would get up early and bring SA to the Mother before leaving for work. He’d come home after 6 p.m., and would help feed SA. After dinner, the family would go for a walk, or to the park, then get SA ready for bed.

On days off, the family would spend time together. [ 94 ] After SA was introduced to solid foods, he helped feed her. [ 95 ] Some weekends, the family went on trips. [ 96 ] When SA was ready for a day home in February, 2013 and the Mother returned to full-time work, he and the Mother would get SA ready in the mornings before taking her to the day home.

SA was at the day home Tuesdays through Fridays. [ 97 ] The Father did not work Mondays, so he was responsible for SA on Mondays. [ 98 ] Generally, he and the Mother cared for SA together. [ 99 ] He was able to attend one immunization appointment for SA while the parties were together. The Father’s work was near the clinic and the Mother claimed that she scheduled the immunizations at lunch time so he could attend. The Father explained that he had conflicts at work with the other immunizations (this issue is connected with what the Father alleges was lack of adequate notice about medical issues involving SA).

SA was only about a year and four months old when the parties separated. About four immunizations were administered to SA during the parties’ time together. [ 100 ] The Father’s testimony about post-separation events focused, in the main, on a series of disputes with the Mother, as opposed to detailing his ongoing relationship with SA. That, in my view, was the product of litigation and frustration. Unfortunately, Justice McLachlin’s opposition to the “tendency to render the inquiry more technical and adversarial than necessary” ( Gordon v Goertz at para 43 ) tends to be ignored in mobility cases.

Justice McLachlin perhaps assumed too much of stressed, conflicted, and combative parents and ex-intimates. [ 101 ] What can be discerned from the Father’s evidence and the evolution of the litigation is that the Father has been concerned, since

separation, to get parenting time with SA; to have that parenting time formalized and enforced; and to increase that parenting time, culminating the Justice Ross Order providing for shared custody. The Father testified that he and SA do “special things” together, just as she and her Mother do “special things” together. He takes SA and L to events in which he participates, like motorcycle races. They go to West Edmonton Mall and to the “Science Park” (I believe he meant the Science Centre). They are happy together. They cook, do the dishes, and clean together. They go fishing.

They are a dad and a daughter. (iii) The Father’s Credibility [ 102 ] Counsel for the Mother identified an inconsistency between the Father’s testimony and an earlier affidavit. In his affidavit of April 3, 2014, the Father attested at paragraph 24 that “I was the one who prepared [SA] for the day by feeding her, changing her clothing, and preparing her bag for day home .... The Respondent would choose to sleep in instead of getting ready.” In his testimony, he indicated that he and the Mother together got SA ready. That is an inconsistency, but it is minor.

The Father corrected his 2014 exaggeration in his testimony. The 2014 passage does, in effect, characterize the Mother as lazy and, at least as regards mornings, irresponsible. That was not the Father’s testimony and I draw no such inferences respecting the Mother. [ 103 ] Aside from this inconsistency, which I find to be inconsequential (both by itself and cumulatively with other inconsistencies), the Father’s account was not shaken. His account of his involvement with his child was entirely plausible, what one would expect of a father in a new family of modest means.

There was nothing remarkable about his account. (iv) The Mother’s Account of the Father’s Relationship with SA [ 104 ] The Mother’s account of the Father’s relationship with SA stands in stark contrast to the Father’s account. In her testimony, the Mother sought to minimize the Father’s parental involvement with SA.

In overview, the Mother’s testimony was that the Father was uninvolved, self-absorbed, and unfit. [ 105 ] The Father and Mother’s testimony agreed that when SA born, the Father’s mother assisted and the Father took a few days off, then went back to work. [ 106 ] The Mother took a three month period of maternity leave after SA was born. She returned to work part-time from June to November, 2012. During this period, there was no dispute that the parties relied on a variety of babysitters to assist with SA. The Mother then went on maternity leave again.

The Mother returned to work full-time around the end of February 2013. As of this time, SA attended a day home from Tuesday to Friday. [ 107 ] The Mother’s testimony was that during her period of maternity leave, “I did it all.” [ 108 ] From June to November, she dropped off and picked up SA and got her to bed. [ 109 ] She took SA to activities on weekends. SA was with her all the time. [ 110 ] From November to February, she did nearly 100% of the parenting.

The Father had “almost zero involvement.” [ 111 ] She claimed that the Father did not want to be with SA. [ 112 ] When she returned to work in February 2013, the Father would drop SA off on his way to work. The Mother would pick her up, make supper, and get SA ready for bed. She followed this routine until separation. [ 113 ] The Mother said that the Father was “not a hands on dad.” He did not hold SA every day. He preferred the Mother to look after her. [ 114 ] The Father did not come to SA’s activities like swimming or not library time. [ 115 ] The Father didn’t work Mondays. He stayed home.

He worked on his motorcycle. [ 116 ] The Father refused to attend Christmas services with the Mother and SA. [ 117 ] As an example of the Father’s lack of involvement with SA and lack of support for the Mother, the Mother testified that she had a job interview come up in mid-February 2013. Despite being available, the Father would not look after SA. He went skiing for the day. The Mother had to find an emergency babysitter. [ 118 ] The Father did not assist with SA’s health needs. She took SA to the pediatrician. The Mother did all the immunizations.

She had scheduled immunizations during lunch hours so the Father could help. The immunizations were at a health clinic that was a short drive from his work. The Father had been “able to take flexible lunch and break times” before SA was born. He did not assist with the immunizations, though. The immunizations were “horrible.” SA fussed significantly. Nonetheless, the Mother ended up taking SA by herself. [ 119 ] The Mother had concerns with the Father’s mental health. The Father had let her know when they started dating that he suffered from depression.

He had been under the care of a psychiatrist for some years before meeting the Mother. [ 120 ] In June 2012, however, the Mother became concerned about the Father taking care of SA. He was disengaged and angry. His depression not doing well. She testified that “I was afraid to leave SA in his care.” She reiterated at other points that she was not comfortable and did not feel safe leaving SA with the Father. [ 121 ] The Mother testified that she called the Father’s psychiatrist and expressed her concerns. She didn’t want the Father to know she had called, so the psychiatrist said that he’d be discreet.

The psychiatrist adjusted the Father’s medications and “things went back to

normal.” [ 122 ] In November 2012, the Father injured his back. He was “laid up, in a lot of pain.” He was not able to pick up anything or bend. He couldn’t pick up the baby. In January 2013 he was prescribed an anti-inflammatory or nerve blocker. He reacted poorly to this medication. He became “incoherent.” Throughout January, the Father was in and out of consciousness. He had memory loss. He was lethargic. He was not himself. He was sent home from work. He slept all day. He had trouble getting out complete sentences. It was “scary.” The Mother called the psychiatrist. The Father’s medications were altered.

In a few weeks, he was back to normal. [ 123 ] After the parties separated, the Mother testified that the Father was angry and aggressive, particularly in August and September 2013. She feared leaving SA with him. When she did leave SA with the Father, the Father’s father was with him.

The Father’s father was “great.” So long as he was there, the Mother had “no problem” handing over SA to the Father. [ 124 ] Again, like the Father’s testimony, the Mother’s testimony about post-separation events focused on the series of disputes between the parties, and not, for the most part, on the quality of the Father’s care for SA. [ 125 ] When asked about how SA would be affected if the Father’s cross-application were granted, the Mother said that SA would be left at the end of the Father’s anger, depression, and memory loss. (

v) The Mother’s Credibility respecting the Father’s Relationship with SA [ 126 ] The Mother’s testimony, like the Father’s, had some minor and inconsequential errors. [ 127 ] The Mother testified that the Father did not attend any immunization appointments with SA. The Father provided a detailed account of an immunization attendance. I find that the Mother was wrong and that the Father did attend one immunization appointment.

The Mother took SA to three of the four immunization appointments herself and dealt with a very unhappy child, so the mistake was entirely understandable. [ 128 ] The Mother testified that while the parties were together, the Father had never visited Lethbridge other than for SA’s dedication ceremony. When confronted with a photo that contradicted her claim, she acknowledged her error. The Father had attended in Lethbridge with SA at least one other time during the period of cohabitation. Whether or not the Father had visited Lethbridge while the parties were together was not a significant issue.

He certainly had not visited often. The Mother’s mistaken memory concerning this detail does not, by itself, undermine the reliability of her testimony. [ 129 ] I have found, however, that the Mother’s account of the Father’s role as a parent and his relationship with SA is inaccurate, based on the following considerations. [ 130 ] It was an acknowledged fact that the Father did not work on Mondays. From at least the end of February 2013 until the parties separated, he looked after SA on Mondays.

That was a manifest contribution by the Father to SA’s care that the Mother did not recognize in her testimony. [ 131 ] The Mother did not disclose in her testimony that she had been injured giving birth. She would have required some assistance while recovering. The Father’s mother did help out after SA was born. I find, though, that it would have been highly improbable for the Father not to have assisted the Mother during this period, at least. The presence of his mother would be a motivation to assist and not to shirk (or be seen to shirk) responsibilities.

I find that the Father did assist the Mother with the care of SA, particularly in the period shortly after she and the Mother came home from hospital. [ 132 ] The Mother testified that she communicated directly with the Father’s psychiatrist, leading to prescription changes for the Father. The psychiatrist was not called as a witness.

The only direct contribution by the psychiatrist to the proceedings was a letter entered as an exhibit 41 stating that the psychiatrist “[has] had no concerns whatsoever about his ability to parent his children.” A psychiatrist is prevented by both health information legislation and ethical rules from discussing a patient’s treatment with another individual without consent, even a spouse; and a psychiatrist would not be ethically permitted to prescribe medications without dealing directly with his or her patient.

The Father denied extending any consent to the psychiatrist to discuss his condition or medications with the Mother. The Father testified that his prescriptions were changed because of his discussions with his health services providers. I find that the Mother’s alleged discussions with the psychiatrist did not take place. [ 133 ] The Mother testified that in March or April 2014, after visits with the Father, SA exhibited fear of water, especially water splashing on her face. The unspoken implication was that the Father had somehow traumatized SA with water. The claim of fear of water was new.

It had not been attested to before the hearing, despite the numerous affidavits filed in applications pre-dating the hearing. More importantly, SA is in swimming. Further, when talking about the virtues of an earlier proposed move to Medicine Hat, the Mother mentioned the availability of a spray park. Swimming and spray parks would not be feasible for SA had she the alleged fear of water. The Father testified that SA loves the water and washes own hair and face. After the parties separated, SA had played at a spray park. The Father took SA to the West Edmonton Mall Waterpark with L.

The Father has taken SA and L fishing on boat. I find that the Father did nothing improper with SA involving water and the claim that SA feared water or water splashing on her face was false. [ 134 ] The Mother’s claims against the Father are inconsistent with her own conduct. The Mother had testified that the Father was incapable of looking after SA during his period of incapacitation in November and December 2012.

However, the Mother left SA in the care of the Father during this time frame at least once so she could go to church. [ 135 ] Moreover, the Father was working full time during this period and he had to drive to work. There was no evidence that the Father was given time off, with or without pay. Had the Father’s circumstances been as bad as described by the Mother he could not have worked. I find that his circumstances were not as bad as the Mother described. He was capable of both working and looking after SA, even if he was more tired or lethargic than usual.

[ 136 ] The reasons for the parties’ separation are not relevant, except that in her testimony the Mother did not refer to difficulties between SA and the Father as being a reason for the separation. The Mother was not reluctant to catalogue the Father’s alleged failings. As described by the Mother, the Father’s lack of parental involvement was pathological.

Given the Mother’s concern for SA, it would be expected that the primary and most highly emphasized reason for the separation would have been the Father’s failings as a parent. [ 137 ] The Mother claimed that she feared leaving SA with the Father because of his anger and aggression. That did not stop her from leaving SA with the Father on Mondays before separation.

After separation, even aside from the dates when the Father’s father was present, she left SA with the Father so she could go on an overnight work trip to Calgary and she left SA with the Father when she had weekend work commitments “once in a while.” [ 138 ] The Mother distorted facts by omitting information. With respect to the Father’s failure to look after SA when the Mother had to go to the job interview, the Father confirmed that he did go on the ski trip and did not look after SA.

He added, however, that the ski trip had been planned and discussed with the Mother and the Father was “informed at the last minute” about the interview. The Mother told him that she had already talked to a friend about babysitting and that he should go on the trip. I accept the Father’s account of this event. [ 139 ] The Mother testified that the Father took SA to an ice race when SA was sick. The suggestion from the Mother’s testimony was that SA was there for hours. The race was a 24-hour race. The Father provided documentary evidence establishing that the race in question was a 4-hour race.

He testified that SA was not there the whole time. She and L came separately from him, so she did not have to be there early. She was not sick. She enjoyed going to these races because she loves to play in the snow and to be in the fresh air; she could play with a dog; she could go on a sled; there was lots of food; and she could sit in a heated trailer. She had an iPad to use if she tired of the outdoors. I accept the Father’s account of this event. [ 140 ] After the separation, the Mother alleged that SA related some information of a sexual nature to her. SA described two people having intercourse.

The Mother accused the Father of permitting SA to view pornography. She not only called the Father at work to make this claim, but texted Kathy, his boss, and C, his former wife. She also contacted the day home (she said she didn’t recall doing this but the day home operator told the Father that the Mother did call – a small bit of hearsay which I accept as sufficiently reliable to be admissible because of the unlikelihood of the claim being made by the day home operator were the call not made). The Mother contacted Child and Family Services.

CFS contacted the Father once, then terminated its investigation. [ 141 ] The Father’s evidence was that he had no cable television and computer-accessible programming (e.g. NetFlix) was password protected. [ 142 ] Contacting C, the mother of L, might have served some purpose related to an alleged exposure to inappropriate materials. Contacting Kathy served no such purpose. The message to Kathy begins “Hey did you watch [SA] this weekend?” Kathy replied that she did not. The Mother then volunteered that SA was exposed to porn at the Father’s house. I find that the contact was on a pretext.

If SA had said something to her Mother about viewing inappropriate material, she surely could and would have told her Mother whether Kathy was there at the time. Contacting the day home served no legitimate purpose. Contacting CFS was a highly exaggerated response. I conclude from the Mother’s communication with the Father’s boss, the day home, and CFS, that she was attempting to harm at least the Father’s reputation.

The Mother’s actions support the finding of a motivation to discredit the Father for the purpose of reducing his access or parenting time. [ 143 ] Further, after the separation, the Mother was in frequent contact with C. There might have been reasons for the Mother to communicate with C since she was L’s mother, such as for the planning events involving SA and L. However, the Mother’s communications with C went beyond these sorts of communications. I find that the Mother sought in C an ally to assist her in strengthening her parenting claims and weakening the Father’s parenting claims.

This is more an observation than an inference. In a set of text messages entered as exhibit 29, the Mother stated the following to C: “Wanted to talk about some strategic planning ....” (p. 1) “Just keep in mind two mothers fighting together for a cause is better than one or one at a time” (p. 2) “Then help me [C]!!! Give me access to your concerns on paper. We are stronger together at protecting our kids – [L] already has a dad – [S (i.e., C’s partner)] If we work together to show the courts we have concerns then maybe you can start getting time back with [L] and supervised visits.

With your court papers an (sic) my photo evidence!” (p. 3) I note that the comment about L already having a dad is a dig at the Father, since the Father is, after all, L’s father. The Mother tried to explain away the “strategic planning” phrase in particular but I reject that explanation. What she said is what she meant. She was trying to work with C against the Father. [ 144 ] In another set of texts to C, the Mother

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