SK v MK, 2017 ABQB 249

Court of Queen’s Bench of Alberta Citation: SK v MK, 2017 ABQB 249 Date: 20170407 Docket: 4801 160487 Registry: Calgary Between: S.K. Plaintiff - and - M.K. Defendant Restriction on Publication Identification Ban – See the Family Law Act,

section 100. By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. NOTE: This judgment is intended to comply with the ban so that it may be published. Identification Ban – See the Protection Against Family Violence Act, section 8(3). By Court Order, there is a ban on publishing information that may identify the claimant in this matter. NOTE: This judgment is intended to comply with the ban so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.G. Park

_______________________________________________________ [ 1 ] Friday April 4, 2014 brought an immense change in the lifestyle of the Plaintiff (SK). His wife (MK) kissed him goodbye as he left for work as a realtor in the City of Calgary but during the course of that day he learned she caused 2 bank drafts in the total sum of $44,815.00 to be drawn on his business account and paid to her father’s bank account. She further withdrew $10,000 in cash from their joint personal bank account and removed all of the contents of their joint bank safety deposit box.

The contents included jewelry, $10,000 cash and their passports. [ 2 ] He further learned she obtained an Emergency Protection Order against him later that day from a Justice of the Peace in Calgary. This Order prevented him from contacting his wife, their only child and infant son (S), his father in law and his brother in law. He was ordered not to attend at his Calgary home. Finally he soon learned his wife had earlier that day laid a complaint with the Calgary Police Service. He was arrested and charged under sections 266 and 267 (

a) of the Criminal Code . He was released on a recognizance for $3,000 with no deposit. Its conditions included no contact or communication directly or indirectly with his wife or his infant son. It included he should not attend within a 2 block radius of his matrimonial home. A third condition required that he refrain from the purchase, possession, use, or consumption of alcohol or other intoxicating substances or any non-prescription illicit drugs. [ 3 ] On April 14 th , 2014 MK left the City of Calgary with the child without any court order and without the knowledge or consent of SK.

She returned to Burlington, Ontario where her family resided. MK left with her father and brother who arrived in Calgary earlier to assist her with her return with the child to Ontario. She still resides in Burlington with the son. [ 4 ] As a result of these actions SK retained Counsel who filed in this Court a Statement of Claim for Divorce and Division of Matrimonial Property on April 17 th , 2014. MK, some 2 years later, on May 11 th , 2016 in response filed a Statement of Defence and a Counterclaim.

In the Statement of Claim SK seeks joint custody of the child with primary day-to-day care and control awarded to him. He proposed the parties should have a shared parenting arrangement. [ 5 ] In her Statement of Defence MK contests joint custody. Her Counterclaim seeks a divorce based on a 1 year separation. There is no allegation of physical or mental cruelty. She seeks sole custody with SK receiving as much child access as can be arranged during his visits to Ontario. She proposed SK pay reasonable child support accounting for SK’s costs of access visitation in Ontario.

MK further seeks severance of corollary relief and an order transferring corollary relief to the jurisdiction of Ontario. [ 6 ] Since April 4 th, 2014 a number of events and legal applications have occurred. As a result of the pleadings filed, and the applications made to date, this application before me is an interlocutory viva voce special hearing wherein SK seeks an order for custody and access and primary care for his infant son in Calgary.

MK, by a counter application filed on April 24 th , 2014, seeks an order that she be permitted to remain in the province of Ontario pending a full hearing on the matter of parenting and mobility. [ 7 ] This application took 7 days to hear with each party testifying in support of their application.

An Agreed Statement of Facts and numerous exhibits were filed. [ 8 ] Before embarking on the factual findings arising from the evidence it is important to review the various pleadings and interim orders which have been filed to date. [ 9 ] On April 17 th , 2014 SK and his Counsel appeared on an ex-parte basis before Strekaf J. (as she then was) in Chambers.

She granted him the following Order: It is hereby ordered: That neither party shall remove the child from the City of Calgary without a Court Order That S, born on January 5, 2014 shall be immediately returned to 407, 355 Taralake Way NE, Calgary, Alberta, forthwith, and in any event, within 7 days of Service of this Order, failing which the Respondent shall attend at the Court of Queen’s Bench, Calgary Court Centre on April 25, 2014 at 10:00 a.m. to show cause why she should not be held in contempt.

That within 7 days of service of this Order, the Respondent shall return, to the Applicant’s counsel, $44,800.00 representing the funds taken on April 4, 2014 from the business account of SK Real Estate Inc, such funds shall be held by Vogel LLP pending further Court Order or written agreement between the parties. [ 10 ] MK did not follow the order of Strekaf J. and return to Calgary with the child. Instead her Counsel on April 25, 2014 brought an application before Jeffrey J. of this Court. It requested an order for the following: 1. Setting aside the April 17, 2014 Ex-Parte Interim Order of Strekaf J. 2.

Providing the Defendant with primary care and control of the child. 3. Allowing the Defendant to remain in Ontario with the child pending a full hearing of the matter of parenting and mobility of the child. 4. Not allowing the Plaintiff to have access or contact with the child until further order of the court. [ 11 ] Jeffery J. granted the following Order: 1. The April 17, 2014 Ex Parte Interim Order of Justice Strekaf shall be set aside.

2. The Defendant shall have primary residential care and control of S in the Province of Ontario. 3. The issue of the Plaintiff’s access with S shall be reserved until after such time as the criminal charges against him have been disposed of, regardless of the manner of their disposal. 4. While the Defendant and the child reside in Ontario the Plaintiff shall have exclusive possession of the matrimonial home and the April 11, 2014 Order of the Honourable Madam Justice R. E. Nation is varied accordingly. 5.

Notwithstanding paragraph 4 above, nothing in this Order otherwise changes or varies the Emergency Protection Order to which the Plaintiff is subject. [ 12 ] On August 14, 2015 D.B. Nixon J. of this Court ordered: 1. Commencing September 1, 2015, the Plaintiff shall have access to the child of the marriage for four consecutive days each month on the following specified schedule: a. 1 st month: 3 hours on Day 1; 4 hours on Day 2; 5 hours on Day 3; 6 hours on Day 4; and b. 2 nd month and every month thereafter: 4 hours on Day 1; 6 hours on Day 2; 8 hours on Day 3; 8 hours on Day 4. 2.

Commencing September 1, 2015, the Plaintiff’s family shall be able to attend any of the access times the Plaintiff has with the child. 3. The Plaintiff and Defendant shall alternate travel for the Plaintiff’s access with the child with the Plaintiff travelling to Ontario for access in September 2015 and the Defendant travelling to Calgary for the Plaintiff’s access in October 2015 and alternating each month thereafter. 4. The Defendant shall provide a $300.00 per month in reduction to

section 3 child support to the Plaintiff in months that he travels to Ontario for access. 5. The Plaintiff shall provide a minimum of two weeks’ notice to the Defendant when scheduling access pursuant to this Order. 6. The Plaintiff’s access shall be supervised by an agreed to third party agency until the Oral Hearing regarding the return of the child to Calgary, Alberta. 7. The supervisor shall have the authority to cancel the access if the supervisor deems it in the best interests of the child to do so. 8. The Plaintiff is responsible for arranging all supervision times and the cost associated for the same. 9.

The supervisor shall provide written reports of the visits to counsel for the Plaintiff and Defendant. 10. The Defendant shall provide the following to the Plaintiff for access with the child: (

a) A list of foods that the child may eat; (

b) Diapers, foods and other daily use items that the child has; (

c) Detailed information regarding the child’s sleep and eating schedule; and (

d) Detailed information regarding any health or medical issues that the child has. 11. The Plaintiff shall adhere to any

schedule provided by the Defendant; 12. The Plaintiff shall have costs in the amount of $300.00, payable forthwith. [ 13 ] On November 17, 2015 Dario J. of this Court ordered that oral evidence can be heard on a 2 day hearing on custody and access to determine the substantive issues of custody and access. She did not order as set out in the Agreed Statement of Facts at paragraph 7 that the issue of mobility be determined. [ 14 ] On December 14, 2015 Neufeld J. of this Court ordered that: Pursuant to the Divorce Act (Canada) , the Order pronounced August 14, 2015, by the Honourable Justice D.B.

Nixon is hereby varied as follows: Clauses 6, 7, 8 and 9 shall be removed and the Plaintiff shall no longer require supervised visits with the child. [ 15 ] On February 24, 2016 K.D. Nixon J. of this Court issued an Order that jurisdiction of the corollary relief, specifically the child of marriage, remains the jurisdiction of Alberta. [ 16 ] MK appealed that Order to the Alberta Court of Appeal.

On November 2, 2016 the Alberta Court of Appeal dismissed MK’s appeal with costs awarded to SK. [ 17 ] Before argument commenced on this application I enquired of both Counsel exactly what was the nature of this application and the relief sought by each party. I did so in the absence of any specific notice of motion put before me dealing with this application. In this connection I noted the November 17, 2015 Order of Dario J. referenced that oral evidence can be heard on a 2 day hearing on the

substantive issue of custody and access. [ 18 ] I observed further in the November 2, 2016 Memorandum of Judgment of the Alberta Court of Appeal it was noted a two-day mobility trial by the Dario J. Order is to proceed in December, 2016. The Court of Appeal noted further that MK will have the opportunity to adduce evidence and arguments concerning the child’s connections to Ontario at the mobility hearing to support her position that she and the child should be permitted to continue to reside there. Finally the Court of Appeal stated that the decision of K.D.

Nixon J. on the question of acquiescence was interlocutory and is not binding on this Court when the mobility trial proceeds in Calgary in December. [ 19 ] The Order of Dario J. and the comments of the Alberta Court of Appeal troubled me. There was a distinct lack of pleadings in this matter. As a result I was referred by Counsel for SK to MK’s application of April 25, 2014. Consequently I concluded this application is not a trial or a mobility hearing.

Rather it is an application by MK that she be permitted to remain in Ontario with the child of the marriage pending a full hearing on the matter of parenting and mobility. The cross-application by SK is for an interim order for custody and access and primary care of his infant son in Calgary. Both Counsel agreed with my conclusion. [ 20 ] If SK is successful on his interim cross application and MK is not successful in her application, it stands to reason the infant child will be ordered to return to Calgary. [ 21 ] SK testified in support of his application. He is a 33 year old man who was born in India.

He immigrated to Canada in 2003. SK studied 4 years at the University of Windsor and graduated with a business degree in 2007. He applied for a work permit and worked in Ontario before moving to Calgary in 2009. In Calgary he worked various jobs before he obtained a realty license in 2011 and started work at Re/Max House Real Estate where he is currently employed. The nature of his employment allows him flexible hours. His future plan is to stay in Calgary and continue in working at Re/Max. [ 22 ] SK met MK on December 10, 2012 through an online website dedicated to the South Asian population.

On December 20, 2012 he flew to Burlington, Ontario to meet her. On that same day they decided to marry. On February 1, 2013 they were married in a Hindu marriage ceremony in New Delhi, India. He testified he advised her prior to the marriage that he was a divorced man. [ 23 ] After the wedding they returned to Calgary. MK made arrangements to continue to work for her present employer at a remote location in Calgary. [ 24 ] Initially they were a happy couple, professing their love for each other through e-mails.

SK believed he was in love and he believed MK was in love with him in accordance with an e-mail of May 28, 2013 in which she advised she wished to bear his children as her life could not have been any better and she was very happy. Photographs were entered into evidence of their initial time spent with each other and with family. These photographs appeared to depict a couple content with each other and apparently in love. [ 25 ] SK denied MK’s allegations that he subjected her to significant physical and emotional abuse since the beginning of the marriage.

He denied her allegations that he often would slap her in the face; hit her with closed fists and pull her hair out in clumps.

He denied her allegations that such physical assaults would occur not only when he was sober but would occur more frequently when he drank alcohol to excess. [ 26 ] When he learned of her pregnancy, he described himself as very, very happy. [ 27 ] On December 22, 2013 they signed a purchase agreement to build a bigger home for themselves and the expected child as they believed his pre-marriage condominium, in which they were residing, would prove to be too small with the birth of their child. [ 28 ] On January 5, 2014 their son was born.

SK described the pregnancy and C-section birth as being a stressful and frustrating time for both of them due to a serious case of pneumonia contracted by MK shortly before her delivery. [ 29 ] After the birth, while MK was still in the hospital, SK testified there were frustrations between them involving her difficulties with breast feeding. In addition he noted MK was unhappy his mother would be staying with them in their small condominium along with her mother after her hospital discharge. SK admitted he pulled MK’s hair in the hospital.

He claimed the hair pulling incident occurred shortly after MK struck him following an argument between them. I note the hair pulling incident was witnessed by a hospital unit nurse. The nurse advised the hair pulling occurred due to frustration with breast feeding. According to Tab 1 of Exhibit 4 (a Patient Information Details document generated by the Neonatology Unit) tendered by MK the incident was investigated by the hospital staff. The investigation was detailed in the document. The document stated that MK denied any domestic violence and she explained the situation on the unit was an isolated incident.

It was noted in the document both MK and SK were very stressed. [ 30 ] SK described his parenting of his son as very good. He detailed his return to his home every day at lunch to care for his son and help MK due to her lack of mobility lifting the baby or heavy objects due to her C-section. He testified both mothers were present in the home to help the young family soon after the hospital discharge. [ 31 ] SK denied MK’s allegation that his mother assaulted her during the mother’s stay. [ 32 ] He believed his marriage was “great” prior to April 4, 2014.

He denied any violence between the two of them prior to April 4, 2014. He acknowledged arguments did occur. In his belief he attributed these arguments took place due to MK’s high stress level as a result of depression. [ 33 ] On March 29, 2014, he described a late night visit to Safeway, the Cheesecake Factory and Denny’s Restaurant with his wife and son. He produced a receipt for two people at Denny’s Restaurant. The receipt was dated for 12:15 a.m. on March 30, 2014. It indicated guest one consumed a Budweiser beer and a chicken burger.

Guest two had a Budweiser beer and a vegetable omelette. [ 34 ] After leaving Denny’s Restaurant he testified he placed the baby into the rear seat of his car. He advised MK got into the rear seat as well. He indicated after he drove to the roadway, MK started striking him on the back while she was verbally abusing his family.

He stated his wife next opened the rear car door on the highway as he was driving. He stopped and she stepped out of the car. According to him he made a U-turn and returned to find her walking in the opposite direction from the original route. He begged her to enter the car. She did because she had calmed down according to his evidence. [ 35 ] In his evidence he denied that he was striking her with a closed fist, slapping her or grabbing her by the hair in the car. He testified that he did not hit her with a golf club in the hip area when she initially stepped out of the car onto the roadway as alleged by her.

His evidence was that he did not own a golf club. He testified that once they arrived home at about 2:30 a.m. he did not hit her multiple times with closed fists mostly on her hands as she later alleged. His testimony was that he did not rip her t-shirt. Nor did he advise her he was going to videotape her in the nude and post the videotape on social media sites. In his evidence he denied throwing her into a laundry shelf causing it to break. He denied choking her and denied telling her he would kill their son if she telephoned 911.He advised from March 29 to April 4, 2014 the home atmosphere was calm and quiet.

Indeed, according to him, he tended the baby while MK was seeking medical treatment on her arm due to having dropped a printer on it. [ 36 ] He testified after he attended the bank on April 4 th he became worried that his wife and son were in danger. He tried unsuccessfully to telephone his wife in Calgary and his in-laws in Burlington, Ontario. [ 37 ] He returned home to find an empty house. His son’s clothes were missing. His rainy day money fund stored at his house was missing. [ 38 ] He immediately went to the local police station to report the disappearance of MK and his son.

At the police station he was advised he was being charged with assault with a dangerous weapon on the person of MK and a further charge of assault on MK. After his release from jail on that Friday night he received a copy of the Emergency Protection Order which had been granted by the Justice of the Peace at 4:30 p.m. on April 4 th , 2014 to MK. I note from a review of the transcript a Justice of the Peace issued a broad prohibition preventing SK from any contact with MK’s parents and brother who lived in Ontario.

This Order was granted on the testimony of MK that SK advised her if she reported his violence he would kill her family. [ 39 ] He slept in his car on the streets of Calgary on the nights of April 4 th and April 5 th , 2014. [ 40 ] On April 11 th , 2014 he attended with his Counsel in Chambers before Nation J. for review of the Emergency Protection Order. MK was also present in court. Nation J. adjourned the review until May 30 th , 2014.

Nation J. noted the Emergency Protection Order would continue with a term in it that it would be subject to any Court order that may be given about custody or access to the child. Nation J. noted if there were any issues about the child, someone would have to bring a custody or access application.

In reading the transcript of that application it would appear Nation J. responded in that manner due to the concern expressed by SK’s Counsel that notice be provided to SK in order that he could make application to the proper agencies due to the tender age of the child. [ 41 ] On April 14 th , 2014 he learned from his Counsel that MK had left Alberta with the child. No order from any court had been given to allow her to do that.

Accordingly on April 17 th , 2014 SK and his Counsel attended before Strekaf J. on the ex-parte application to return the child. [ 42 ] In the application before me SK testified he understood the Order of Jeffrey J. would be in the best interests of his infant son who was still being breast-fed and did not need to travel often. He testified he never agreed to allow his son permanently to remain in Ontario. He knew on April 25 th that his criminal trial was scheduled for 3 days commencing on December 5 th , 2014.

He understood his access to his son was reserved until his criminal trial was completed and he could continue with an application to return his son to Alberta. [ 43 ] He testified if the present application results in an order providing the return of his son to Alberta, he will give up possession of the matrimonial home to his wife and son until a full trial can be heard and determined on the issues of final mobility and custody.

He further indicated if MK does not return and only the son returns pending the trial, he would care for his son in the matrimonial home. [ 44 ] SK’s testimony revealed that during the first week of April 2014 MK and her family contacted by telephone 2 of his business associates. MK and her family made allegations to them of physical cruelty occasioned by SK to MK.

Other allegations made to them involved SK’s criminality, acts of extortion and other acts of bad faith. [ 45 ] His evidence indicated that he did not and does not have a criminal record. [ 46 ] In addition SK advised MK laid a complaint to his employer, Re/Max, and to the Real Estate Council of Alberta by letter of April 13 th , 2014. The complaint referenced SK being charged with severe criminal charges. It further referenced threats made by SK and an allegation that SK possessed a violent and criminal record.

In the complaint MK asked for an investigation to take steps to save further lives. [ 47 ] As a result of these allegations an Order of Jeffrey J. on April 25 th , 2014 included a clause directing MK to contact Re/Max and the Real Estate Council of Alberta and apologize for making disparaging remarks about SK and to refrain from making disparaging remarks in the future to professional associates of SK. [ 48 ] Apologies were provided by MK. [ 49 ] However SK’s testimony revealed the Real Estate Council of Alberta levied an administrative penalty against him for failing to notify the executive director promptly in writing of the existence of the criminal charges.

In fact SK did notify the Real Estate Council of Alberta of the presence of the criminal charges on May 12 th , 2014. He testified a 38 day delay in providing notice to the Real Estate Council of Alberta was attributable to his concern about his son and his situation. The administrative penalty included a $1000 fine and a notice of disciplinary penalty on his real estate certificate and the Real Estate Council of Alberta’s website.

[ 50 ] In June of 2014 his Counsel by e-mail attempted to obtain an agreed access to the son under third party supervision. No response from MK or her then Counsel was provided. [ 51 ] The evidence before me revealed on November 11, 2014 another attempt at access was undertaken by e-mail by SK’s Counsel. Unfortunately, according to the evidence of MK, her then Counsel did not advise SK’s Counsel of her position. [ 52 ] Unfortunately, the December criminal trial did not proceed due to a late disclosure of potential evidence by the Crown.

It was adjourned until April of 2015. [ 53 ] SK testified during this time he did not have the funds to follow his Counsel’s advice to apply initially to this Court for an Order amending the Emergency Protection Order and subsequently for an Order amending the recognizance on the criminal charges in order to gain access to his son. He lacked funds due to the shortage of money in his business and the large retainer paid to his criminal counsel for the upcoming criminal trial.

Finally he testified he was forced to find $11,712.50 to provide to MK to remove her name from the title of the larger home he and MK had placed a deposit on in December of 2013 to provide for the arrival of the baby. A Court application was required in this Court in order to have MK’s name removed from the title in return for payment of $11,712.50 to her.

His success in that application meant SK was able to close the real estate purchase of that home and not forfeit the original $25,000.00 deposit. [ 54 ] The testimony of SK indicated on March 23, 2015 on the second day of his criminal trial the Crown stayed his charges after MK and the 2 investigating police officers all testified. [ 55 ] I note in May of 2015 the Emergency Protection Order expired on its own terms. [ 56 ] In July 2015 SK brought an application for access to his son. On August 14, 2015 D.B.

Nixon J. granted him the Order for increasing supervised access alternating monthly between Alberta and Ontario. SK testified he desired supervised access to avoid any possible ill-founded allegations made against him by MK regarding treatment of his son. [ 57 ] MK changed Counsel after the Order of Mr. Justice Nixon. Present Counsel for MK, as new Counsel, had some trepidation in consenting to the Order as he was not present at the application.

This difficulty caused a delay which in turn prevented SK from organizing a suitable supervision agency in Ontario for September of 2015. [ 58 ] In October 2015 SK obtained an Order granting supervised access to his son in Calgary. As well his family was allowed supervised access under the Order. [ 59 ] According to the evidence of SK the access was a wonderful experience for him, his son and his family. [ 60 ] In November 2015 he went to Burlington, Ontario for further supervised access.

He advised under oath this access was expensive for him bearing in mind the travel costs and the supervision costs. [ 61 ] In December 2015 the Order of Neufeld J. removed the necessity of supervised access as the supervision reports were satisfactory.

SK exercised access to his son in Calgary. [ 62 ] In January of 2016 SK testified he travelled to Ontario for another successful access visit. [ 63 ] SK advised in February 2016, which was the alternate month for MK to travel to Calgary to allow SK to exercise access, MK never brought the child to Calgary. [ 64 ] I note instead MK brought an application before Madame Justice Nixon of this Court challenging the jurisdiction of Alberta to deal with the corollary relief in this action. As noted earlier Madame Justice Nixon refused to grant MK’s application to transfer jurisdiction from Alberta to Ontario.

On February 24, 2016 the Alberta Court of Appeal dismissed MK’s appeal from that decision. [ 65 ] Costs for both applications were ordered against MK. At the time of the hearing of this present application these costs remain unpaid. [ 66 ] After the Court of Appeal decision he travelled in March of 2016 to Ontario to exercise access to his son. [ 67 ] In April of 2016 MK did not bring the child to Calgary in order to allow SK to exercise access. [ 68 ] In May 2016 he did not travel to Ontario to exercise access.

He did not see his son in June of 2016. [ 69 ] In July of 2016 SK brought an application before Kenny J. An Order was granted requiring MK to bring the child to Calgary at her expense for 10 days overnight access periods in August, October and December of 2016. SK was given authority for access in September and November in Ontario. [ 70 ] SK described his access visits with his son as enjoyable. They bonded well and have a very loving relationship. SK’s parents travelled from India to Calgary to see their grandchild. In August of 2016 it was the first time SK’s father saw his grandson in person.

Photographs of the happy family members were placed into evidence. [ 71 ] During these last 3 overnight 10 day access visits the little boy stayed in SK’s condo where SK presently lives with his sister. [ 72 ] His testimony indicated he takes his son for religious training at the Hindu temple located close to his home. He advised schools and extra-curriculum activities are close to his home as well. He intends in enrolling his son in numerous Sikh sponsored activities if the child is returned to Calgary alone. [ 73 ] SK`s evidence further listed classes, in which he has participated to make him a better parent.

[ 74 ] SK described saying goodbye to his son at the end of each visit as the toughest thing he can do. He indicated he wants to be present in his son’s life. [ 75 ] He testified he never would have consented to MK leaving Alberta permanently with his son. He believes he has never given up custody of his son.

It is his position that with flexible work hours as a realtor he is in a position to care for his son as the most important person in his life. [ 76 ] SK’s testimony further described an understanding that both he and MK need to adjust as parents for betterment of their child’s interests and their child’s future.

He testified he understands his son requires both parents to raise him. [ 77 ] SK advised his economic circumstances as a realtor do not allow him to move to Burlington, Ontario. [ 78 ] Before completing his examination in chief SK advised that MK commenced litigation against himself, his parents and sister in India in 2014. It is entitled as a criminal complaint against all of them for committing the acts of dowry demand, violence, cruelty, assault, fraud, cheating, breach of trust and criminal misappropriation of property.

As a result he cannot travel to India due to the arrest warrant being issued against him on her complaint. [ 79 ] Under cross-examination SK advised he consented to the child remaining in Ontario (The Jeffrey J. Order), due to the Order stating he is not to have access to his son until the disposition of the criminal charges. He agreed to this course of action on the advice of his criminal Counsel who advised the terms of the Emergency Protection Order and his criminal recognizance ordered a no direct or indirect contact with this son.

Further he noted e-mails to MK’s Counsel in 2014 requesting possible access were not provided with a response which prevented him possibly obtaining access.

After appearing before Jeffrey J. who dealt with the interim residence of the child and the reservation of SK’s child access, SK thought it best not to make an application to vary the Emergency Protection Order due to the need to have the required disposition of the criminal charges, a shortage of funds to instruct his Counsel to launch an application to vary, and a subsequent thought that it was in the best interests of a 5 month old child to remain in a stable environment until the disposition of the criminal charges. [ 80 ] SK denied any physical violence directed by him to MK prior to and after the baby’s birth. [ 81 ] He admitted a security guard was present when visitation nurses came to visit his son after the birth. [ 82 ] After MK moved to Ontario he received the same photo of his son once per month and a description of his son’s activities in bullet points. [ 83 ] In his cross-examination testimony he indicated he declined her offer that he would forego his obligation to pay child support in exchange for extra child access visits financed by him in Ontario.

He believes the child support is for the benefit of his son and should be paid. Reduced child support is presently $594.99 per month. He stated he is willing to pay for part of his child’s airfare between Ontario and Alberta although currently he is paying the entire amount of that airfare. [ 84 ] In response to a cross-examination question he advised MK told him her hand was injured when a printer fell on it when they were living together just prior to her departure for Ontario. [ 85 ] Under further cross-examination he advised MK told him on the night of March 29, 2014 she wanted to enjoy the night.

She was going to formula feed the baby. He testified she was drinking in the car enroute to Denny’s Restaurant. [ 86 ] Under further cross-examination he advised that alcohol consumption appeared to “hit her senses”. [ 87 ] As far as MK’s allegation that he was drinking excessively that night he denied it. He further denied driving erratically enroute home from Denny’s Restaurant.

In addition, he denied that she was accusing him at that time of erratic driving. [ 88 ] He further denied striking her that night of March 30, 2014. [ 89 ] He denied that he ever threatened the baby’s safety. [ 90 ] He admitted her father repaid him after a few weeks the money taken from the business account. He admitted his passport is now his possession.

Currently he pays for his son’s travel costs to Ontario and return and MK pays for her own two-way airfare between Alberta and Ontario. [ 91 ] MK testified in her examination in chief that she is a 27 year old woman who since April 14, 2014 has lived with the child in Burlington, Ontario. She presently is employed at the same company as she was when living in Calgary with her husband, SK. [ 92 ] After her return to Burlington she lived at her brother’s house for 2 ½ years with his family and her parents.

Before she married SK she had those same living arrangements. [ 93 ] A short time before this application she and her son moved to a condo in Burlington. [ 94 ] MK immigrated to Canada in 2010 from her birth country of India. [ 95 ] She testified she never learned of SK’s previous marriage until December of 2013. [ 96 ] During her pregnancy she was stricken with flu and pneumonia. These illnesses combined with her dropping respiratory rate caused her doctors to perform an immediate C-section to save both her life and the life of her premature baby.

The child was placed in the neonatal intensive care unit. [ 97 ] With reference to the incident of March 29 th and 30 th of 2014 MK testified that she was breastfeeding the baby. She expressed

concern respecting SK’s evidence that she for that night decided to bottle feed the baby with formula milk. However, she testified at that time she did bottle feed the baby with expressed breastmilk. [ 98 ] Her evidence was that she did not drink any alcohol that night. Instead she testified it was SK who was drinking all night. She indicated to him at the restaurant that a cab be taken home because of her concern over his alcohol consumption. Instead, she indicated SK insisted on driving.

Her testimony advised when they arrived at the car for the drive home, SK started hitting her and pulling her hair while shouting at her. [ 99 ] She testified he started driving very erratically while verbally abusing her family. Her evidence indicated at one point he stopped the car and bit her on both hands leaving big bite marks. He insisted she leave the car. She exited the car. She testified once outside he kicked her in the body area of her C-section. According to her evidence he next struck her on the hips with a golf club he retrieved from the car’s trunk.

After striking her with the golf club he drove away with the baby, leaving her on the road with no money or phone. She next advised SK returned and ordered her into the car. He drove them home. Once they arrived home he left the home leaving her alone with the baby. She testified that 15 minutes later he returned home and began to strike her with closed fists to her left hand. This beating continued to the point that she was barely able to move her hand. He continued to hit her and pull her hair. Her evidence indicated he threw her into a shelf. Next he began to choke her. The baby awakened.

According to her she advised him she was going to call 911. At that point her evidence indicated he threatened to kill the child if she did. She did not call 911. [ 100 ] Rather she indicated SK’s physical abuse of her and his verbal threats continued until approximately 4:30 a.m. [ 101 ] Her evidence set out that during the course of these events that night SK telephoned his parents who verbally abused her as well.

Finally she indicated that SK ripped her t-shirt apart and advised that he was going to take nude pictures of her and post them to the internet. [ 102 ] MK denied striking SK during the breastfeeding incident at the hospital on January 14, 2014. [ 103 ] MK gave other evidence of physical violence and abuse she alleged were perpetrated upon her person by SK on other dates. She indicated she was entangled in an escalating circle of abuse which prevented her from reporting the abuse. However, SK was never cross- examined on these alleged incidents by MK’s Counsel during his evidence.

As a result I place no weight upon those other alleged incidents. [ 104 ] She testified on April 4, 2014 her father and her brother rescued her and removed her and the baby from the matrimonial home. She felt unsafe in what had become a lonely community to her.

She believes she had no choice but to return to her family support network in Ontario. [ 105 ] She returned to Ontario on April 14, 2014 after spending 4 days in a Calgary hotel with her father and subsequently spending 5 days in the matrimonial condo. [ 106 ] Since her return to Ontario she has engaged in a series of counselling sessions on a one-to-one basis and in addition a group basis. [ 107 ] With respect to the removal of the money from the bank account MK advised she acted in self-preservation in order to receive her share of the matrimonial assets to which she had contributed.

After the court order directing the return of the money she sent the entire balance of the business account to SK and split the funds with him from their joint account. [ 108 ] She described herself and her son doing well in Burlington. Since his birth health issues he is now healthy and happy in her belief. Her new home is centrally located and offers many amenities to them. The child enjoys his own room. He has established a network of friends. He attends a daycare center where she believes he is doing well as he has met all of his developmental milestones.

MK advised she takes him to his many daily activities including religious instruction at the local Hindu temple. This lifestyle she believes has resulted in her son developing a strong attachment to her. In return she testified her child is her life. [ 109 ] She described some behavioural changes in the child after spending his initial 10 day access visit with SK in Calgary. However he soon returned to his normal emotional and behavioural state upon his return to Burlington. [ 110 ] MK testified she sent SK regular monthly pictures and updates of their son’s progress.

No response from SK was forthcoming according to her. [ 111 ] She admitted a father has a very important role in the child’s life and it is in her child’s best interests to have a relationship with his father. [ 112 ] She complained that SK has not paid for the child’s airfare from Burlington to Calgary as he is required to do under the court order. [ 113 ] However she admitted she has not paid $1300.00 in court costs awarded to SK on earlier court proceedings in this action. [ 114 ] She testified she is now agreeable to SK exercising access to his son. [ 115 ] Under cross-examination she admitted she knew on April 17, 2014 by the Order of Strekaf J.

SK wanted his son back in Calgary. That evidence differed from her examination-in-chief when she testified she received notice in July of 2015 (some 15 months after her move to Ontario) that SK wanted his son back in Calgary. [ 116 ] She advised she showed the police the swelling and the scratch marks on her hands. She admitted it was the evidence of the police officers at SK’s criminal trial that the only injury they observed on her was a slight discoloration on her left hand.

Further she admitted the police officers’ evidence at the criminal trial indicated they made no observations of bruising or discoloration on her hip or

back which would be consistent with being hit by a golf club. It was brought out in cross-examination in this application that she was only struck once on the hips with the golf club contrary to the evidence of the police officers at SK’s criminal trial that she advised them that she had been struck by a golf club numerous times on the hips. [ 117 ] She further admitted at the criminal trial the testimony of the police officers was they noticed no hair missing from her despite her advice to them that it was missing.

In her examination-in-chief in this application she testified she was missing hair to such a degree that she had visible clumps of hair missing. [ 118 ] Under cross-examination on this application she testified she provided the police with the golf club with which she claimed SK struck her. She further admitted that was as well her testimony at SK’s criminal trial.

Under further cross examination on this application she admitted the testimony of the 2 police officers at the criminal trial was that they were not provided with the golf club by her. [ 119 ] MK admitted that when she left for Ontario with the child she did not tell SK. She advised she left due to her belief possible harm could come to herself and the baby.

She further believed she had no support system in Calgary. [ 120 ] At the Emergency Protection Order application MK received advice from the Justice of the Peace that MK needed an order from the Court of Queen’s Bench to grant her relief to fly out to Ontario the day following the Emergency Protection Order. MK filed an access to information request of April 4, 2014 wherein she stated she wished to obtain an interim parenting order urgently in order to leave Alberta as soon as possible.

Both of these pieces of evidence conflicted with MK’s evidence on this application wherein she indicated she did not appreciate the need to obtain a court order to leave the province with the child. [ 121 ] Under cross-examination MK testified she was not fully aware on April 11, 2014 at SK’s application before Nation J. (where the Emergency Protection Order was reviewed) that SK wished notice if she was going to leave Alberta with the child. She testified she was not paying attention to the representations being made to Nation J. that SK wanted such notice.

She advised she was not paying attention to what duty counsel representing her was stating to Nation J. She maintained that position in the face of the transcript wherein Nation J. invited both parties to come forward in the court room.

She testified in this application that she did not remember that invitation from Nation J. [ 122 ] While she noted in her examination-in-chief that her son experienced some behavioural changes after his initial access with his father in Calgary, she admitted in cross-examination that at the time of this application the child had spent more time at his father’s residence than he had experienced in the different environment brought about through her move to the recently rented condo in Burlington. [ 123 ] Her evidence in this application and in paragraph 9 of her affidavit sworn August 13, 2015 (Exhibit 1 – Tab 6) indicated she never told her parents about SK’s alleged violence towards her.

She revealed she initially advised a friend of the alleged violence and in turn her friend related the alleged violence to her father. Yet under her cross-examination it was pointed out to her she advised the authorities in India in their investigation of the criminal charges against SK that she did tell her father about the alleged violence before her friend was advised about the alleged violence. [ 124 ] Under further cross-examination she admitted sending SK an e-mail on May 28, 2013 wherein she professed her love for him, told him her life could not be any better and happier and wished to have his children.

She was cross-examined as to why she would send an e-mail of this nature when her evidence was to the effect she started receiving beatings with closed fists, slaps and hair pulling a mere 3 days after their marriage.

She responded that she, a normal person, would not leave a relationship where it was abusive one day and a very loving relationship the next day. [ 125 ] In her cross-examination MK denied telling the Calgary police to place SK in jail when they were investigating her complaint of assault with a weapon by SK, despite the evidence of a police officer testifying at SK’s criminal trial that MK did wish to have SK detained as a result of the investigation. [ 126 ] MK indicated she cannot return to Calgary because her employment, doctors, friends, support system and family are all located in Ontario.

She further indicated she cannot return to a place where abuse had occurred. She advised returning to Calgary is not an option for her. [ 127 ] She admitted she did not send any information to SK regarding their child from April of 2014 until August of 2015 when D. B. Nixon J. granted the Order allowing SK child access. Reasons [ 128 ] After this viva voce hearing MK seeks an order permitting her to remain in Ontario with the child of the marriage pending a full hearing on the matter of parenting and mobility.

Her application is opposed by SK who asked for the return of the child to Alberta with accompanying relief providing him with the primary care of the child in Calgary. [ 129 ] This hearing is not an application to determine interlocutory mobility. Mobility will not be an issue until a full trial. [ 130 ] In oral argument Counsel for MK did submit that he was asking further for an interim order of sole custody of the child to MK with specific access to be provided to SK. [ 131 ] Counsel for MK pointed to the Order of Jeffrey J. which permitted MK to remain in Ontario pending the outcome of the criminal trial.

Her Counsel argued SK permitted MK to remain in Ontario in that he did not bring his application to compel her to return until a period of 14 months had expired after the Order of Jeffrey J. His argument pointed to the fact that SK did not have to permit MK to stay in Ontario in that he could have brought an application to vary in some manner the Order of Jeffrey J. Counsel noted such conduct by SK amounted to acquiescence in permitting MK to remain in Ontario.

[ 132 ] In support of her position that she be permitted to remain in Ontario her Counsel noted the dire circumstances she found herself in following her marriage to SK. She alleged SK’s physical assaults on her person commenced shortly after the marriage in India.

As a result of his conduct towards her she lodged the criminal complaint against him and his family in India. [ 133 ] MK further complained of SK not informing her of his previous marriage. [ 134 ] However MK’s reasons for her relocation to Ontario are founded on her unhappiness in her marriage after she and SK returned to live in Calgary soon after the marriage. She alleges loneliness and health difficulties encountered in Calgary. Most importantly she detailed a prolonged pattern of physical and mental abuse directed to her by SK in Calgary.

She portrayed this abuse occurring both when SK was sober and when he had been drinking. In her mind she was living a life of terror. She further indicated SK’s parents verbally abused her. She further alleged his mother during a visit a visit to the matrimonial home physically struck her. [ 135 ] The tipping point for her on her evidence came on the evening when SK forced her from the family vehicle, struck her with a golf club and drove away in an impaired state with the baby. This incident caused MK to alert a friend and her parents of SK’s abusive acts toward her.

On April 4, 2014 her father and brother came to Calgary to rescue her. They removed funds from the bank. MK laid a complaint with the police which caused SK to be charged criminally. MK obtained an Emergency Protection Order and within a few days she left Calgary with their infant son. She believed she was unsafe in living in Calgary and she had no option but to return to her family support network in Ontario. [ 136 ] Upon her return to Ontario she lived with her brother and his family for 2 ½ years until November of 2016 when she obtained a rental accommodation for herself and the child.

During her time in Burlington she has established employment and has built a social and economic network for herself and the child. She describes the two of them as doing well. [ 137 ] Upon her return to Ontario she initially allowed her son to have very minimal contact with SK.

With various court orders being granted, she has been forced to provide him with increased access to the point where the Order of Kenny J. governs SK’s access. [ 138 ] Her proposal is that she be granted interim sole custody of the child in Ontario by virtue of an Order allowing her to remain in Ontario with the child pending a full hearing of parenting and mobility in the future in this Court. [ 139 ] She proposes SK would be entitled to one week of access in Calgary every three months. She would pay for her airfare to Calgary and return to Burlington once every three months.

She proposes SK would be responsible for the child’s airfare to Calgary and return. In addition once the child becomes older SK could use “skype” to communicate with the child. Further MK submitted SK could fly to Burlington at his expense to visit to his son at any time on a monthly basis.

Finally MK proposed SK would be entitled a $200 per month deduction from his child support to cover his travel expenses. [ 140 ] MK bases her proposal upon her contention that SK permitted her to stay in Ontario by virtue of the Order of Jeffrey J. and his delay in not launching his application until July of 2015 for access to his son. [ 141 ] MK argued SK could have brought an earlier application to vary the terms of Emergency Protection Order or his criminal recognizance between April of 2014 and July of 2015 in order to gain access or custody of his son.

By his delay MK submitted SK acquiesced and permitted a new status quo to emerge in Ontario. MK further submitted it would be in the best interests of the child if she and the child were to remain in Ontario with the stable lifestyle she has created for them. In that instance she would continue to be the decision maker as she has done for well over 2 ½ years. MK argued that if a custodial parent can demonstrate an ability to meet the emotional, psychological, intellectual needs of a child, a court should not gamble on changing the status quo.

She submitted that in such a situation of stability there needs to be a compelling reason for a court to intervene and change the dynamics. Absent a compelling reason a court should not disrupt the child’s life. MK argued there was no compelling reason present in the case at bar and the child’s best interests trump any violation of SK’s rights as a parent. [ 142 ] In support of SK’s position his Counsel argued the paramount factor to be considered, where there is no order for custody, is the best interests of the chid. [ 143 ] Accordingly I address two issues.

The first issue revolves around whether the child should be returned to Calgary. The second issue centers on the nature of an interim order respecting custody and access pending a full hearing or trial on these issues. [ 144 ] I agree the guiding principle in this factual situation is what serves the child’s best interests as far as both the aforesaid issues are concerned. [ 145 ] In deciding what is in the best interests of the child an analysis of the facts must be performed in this particular case. [ 146 ] It must be borne in mind that there is no present judicial order of custody in place.

MK has enjoyed de facto custody as a result of her actions she took in 2014. However, I note she failed to seek an order for either custody or mobility before she left for Ontario with the child and has not sought such an order at any time before this application. She left abruptly with no notice given to SK. Her actions in causing criminal charges to be laid and in obtaining an Emergency Protection Order without notice to him effectively placed him in an untenable situation. Both the terms of the Emergency Protection Order and the criminal recognizance prevented him from contacting MK or his son.

The Order of Jeffrey J. allowed MK to remain in Ontario after she had left the jurisdiction of Alberta. [ 147 ] In that there is no order for custody SK is not applying for a change in the custody of his son. Rather he is asking for a return of his son to the proper jurisdiction of Alberta and he further asks for an interim order setting out custody and access.

Similarly MK asked, not through her Notice of Motion in this application, but on an oral submission at this hearing based upon her Counterclaim filed quite some time after the action had commenced, for an order giving her sole custody in Ontario with minimal access provided to SK until a full hearing or a trial could be held. SK did seek and was successful in obtaining orders of supervised access and non-supervised access since July of 2015. [ 148 ] In those circumstances I view this application as an application of first instance and not an application where there was an

existing order of custody. In those circumstances SK is not applying for a change in the custody of his son and does not have to meet thethreshold requirements of demonstrating a material change of circumstances affecting the child as set out in the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp). [149] MK did not bring a mobility application or an application for custody before she arbitrarily left for Ontario with the child nordid she bring a mobility application in this hearing or at any time prior to this hearing. Accordingly there is no legal presumption in favorof MK.

The focus is on the best interests of the child and not the interests and rights of the parents. However in focusing on that principleI am as well somewhat guided by the need to consider the following principles on mobility as set out by McLachlin J., writing for themajority, at para. 49 in Gordon v Goertz, (1996) (SCC), 2 SCR 27: 7. 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 ofthe 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. [150] As a result I look at the best interests of the child in a fresh inquiry in all of the unique relevant factual circumstances presenthere, having regard to the child’s needs and the ability of either parent to satisfy those needs. While I recognize a move to Calgary willpresent a change in the little boy’s life, I note such a move is only one factor in consideration of his best interests.

In that connection I cansay I am satisfied from all the evidence that each parent has the ability to meet the child’s needs in Calgary.

Both parents have a deeplove and affection for their son. [151] Balanced against the disruptive factor of a move to Calgary is the principle that a child must be seen to have the maximumcontact with both parents in all of the circumstances. [152] I look initially at the question whether MK proceeded properly in arriving in Ontario with her son with no mobility order orcustody order obtained. [153] At the time she left for Ontario MK testified she was in fear of SK with respect to her safety and the safety of her child.

Shetestified she did not wish to stay in the matrimonial condo due to her fears of SK and memories of being in place where abuse occurred.She believed she did not have a support system available in Calgary. She felt lonely. [154] MK now believes she cannot return to Calgary with her son due to her current employment, doctors, friends, support system andfamily in Ontario. [155] If she was ordered to return to Calgary, the only difference between Calgary and Burlington would the loss of her supportsystem generated by her family.

When she left Calgary she had employment with the same company where she is currently employed.She had possession of the matrimonial condo by virtue of the Emergency Protection Order. That Order and SK’s criminal recognizancekept SK either directly or indirectly from contacting her. She had medical care in Calgary, being the birth place of her son. She perhapslacked friends but that might be attributed to her own actions while in Calgary. I note she had no difficulty in making friends when shereturned to Burlington.

It was her choice to return to Burlington and establish a new lifestyle, which she is now loathe to leave in order toreturn to Calgary. During this time in Burlington she took steps to minimize SK’s contact with his son. She continued to live with herbrother in his home for over 2 ½ years. In that time period she understandably allowed her son to develop a strong bond with her father,mother, and her brother and his family.

While she acknowledged on her cross-examination that a father has a very important role inchild’s life, I note she was not very forthright in responding to cross-examination questions as to whether a father’s relationship with hischild should be more important than a relationship between a child and a grandfather, or a relationship between a child and an uncle. [156] Finally I note she has not pursued an interim custody order in this Court with any great urgency.

She indicated in her access toinformation request of April 4, 2014 that she wished to obtain an interim parenting order urgently in order to leave Alberta as soon aspossible. She received some advice from Justice of the Peace Hanley and Nation J. in the respective applications before them as to thepossible need to obtain a custody order. Yet she left Alberta without any order or any notice to SK despite being present at the courtapplication where his Counsel advised of his wish to be advised of her possible departure.

Once in Ontario she did nothing except torespond to SK’s applications that she return to Alberta and SK’s one application for access. Indeed it was not until May 11, 2016 that shefiled a Statement of Defence and Counterclaim in this action wherein she contests joint custody and seeks sole custody with SK receivingas much child access as can be arranged if he visits Ontario. [157] Finally this application seeks relief that she be permitted to remain in Ontario with the child pending a full hearing on parentingand mobility matters.

Her Counsel did seek an order of sole custody with limited access by SK during his verbal argument before me. Ido recognize the Order of Jeffrey J. on April 25, 2014 that provided that MK shall have primary residential care of the child in Ontario. [158] Was MK justified in leaving Alberta with their child? As stated earlier, I have no doubt that both MK and SK love the little boy.I have no doubt that either parent can provide the proper benefit to their son and address all his needs in all respects.

[ 159 ] However, I have grave reservations with respect to the credibility of MK. She was not straight forward in her evidence describing the abuse she alleged she suffered at the hands of SK. After listening to all of the evidence called in this application I am not prepared to find SK rendered any serious physical or verbal abuse to her person at any time before or after their marriage. I did not find MK to be a truthful witness nor am I prepared to find her evidence reliable in this area.

In much of her testimony she did tell the truth but I found her to be sorely lacking with respect to the abuse she alleged at the hands of SK. That is not to say the two of them did not have any marital arguments or squabbles. There was one incident of physical violence between them. In this connection I reference the observation of SK’s behavior at the hospital when he was observed pulling the hair of MK. He testified she struck him first. She denied that. However when queried by the hospital staff MK denied that there was ever any violence between them as a married couple.

While that was an unfortunate incident, I am drawn to the conclusion that each was frustrated and upset with the baby’s health, MK’s health and the difficulties MK was experiencing in attempting to breastfeed the baby. [ 160 ] In assessing the evidence of MK I looked to her inconsistent answers given both in this application and in her previous sworn testimony provided in earlier applications at various court levels and proceedings. Her demeanor was poor in the witness stand before me.

She demonstrated an alarming propensity to provide confusing answers to direct and simple questions posed to her in cross- examination. Her demeanor was such that she often tried to parry cross examination questions put to her by asking questions of her own or pretending to be bewildered and muddled by the nature and context of the question. That air of bewilderment or confusion enabled her to provide evasive answers. [ 161 ] Examples of this criticism of MK’s credibility in the area of her testimony regarding the alleged physical and verbal abuse by SK to her person include these inconsistencies: 1.

The alleged incidents of violence perpetrated by SK and his family in India before the marriage. No action was taken by her until over 1-1/2 years later upon her return to Burlington when she caused a criminal complaint to be laid by the Indian authorities respecting very serious allegations. These allegations did not surface until some months later after her marriage. Not only did she implicate SK but she alleged criminal conduct was perpetrated upon her and her family by SK and his family.

These allegations are somewhat refuted by the e-mail she subsequently provided to SK wherein she advised him her life could not have been any better and she was very happy. She ended by stating she wished to bear his children. 2. The receipt from Denny’s Restaurant for 1 beer for each guest somewhat belie her evidence, although it is acknowledged it is only 1 beer over a short time period, wherein she described SK as “drinking all night”. 3. Her description of SK striking her with a golf club.

One must look to her testimony where she described him striking her on the hip and her advice to the police constables she had been struck numerous times on the hips. No observable marks on her body were noted by either police officer. One would except some bruise marks or injuries would be noticeable on her person a short time later when she was examined by the police officers. 4. Her allegation that SK bit her on both hands during the car ride home from the restaurant. She advised those bites left her with big bite marks on both hands. No big bite marks were noticed by the police. 5.

Her evidence that she provided the golf club to the police is contrary to the evidence of both police officers that they never received any golf club. 6. Her description of injuries to her body including losses of big clumps of hair which filled half a garbage pail. No observations were made by the police of these injuries or hair loss. The only injury noted by a police officer was a small discoloration somewhat resembling a small bruise. The photographs entered as exhibits are indiscernible with respect to the alleged injuries. 7.

Her attempt in her testimony to try to cloud the issue as to whether she knew she was required to obtain a parenting order for her son before she could leave for Ontario. 8. Her testimony was that she did know when she and SK were before Nation J. that SK wanted notice of any intention by her to leave Alberta with the child. The transcript of that hearing certainly demonstrates that such a demand for notice to SK was discussed in the courtroom when she was present. 9. On occasion she had to be told by the Court to answer the question. 10.

The differing explanations provided in this application as evidence and what she told the Indian police as to her knowledge of SK’s occupation as a realtor. [ 162 ] As a result of my concerns with her testimony I cannot find that SK abused MK or threatened the child of the marriage in any way. There were arguments between them but I do not believe he represents any danger to her.

I note, as an aside, the criminal charges were stayed by Crown Counsel in SK’s criminal trial after hearing MK’s testimony in both examination-in-chief and cross-examination and the testimony of the 2 investigating police constables in examination-in-chief and cross-examination. [ 163 ] If MK had brought a mobility application before leaving for Ontario with the child, what evidence could she have adduced to demonstrate the principles set out in Gordon v Goertz , supra ? In my view, there would be no difference in the evidence between that time and now.

The family support system in Ontario existed then and still exists. She had employment in Calgary, and the Emergency Protection Order and the criminal recognizance to protect her safety at that time. [ 164 ] If she is ordered to bring the child back to Calgary, she can at her option move back to the matrimonial condo in Calgary. Equal amenities are available in Calgary and Burlington.

Employment is no longer available in Calgary, but perhaps she can remain employed with her present employer, as she did through a remote work location in Calgary during the first year of marriage. [ 165 ] Through court orders SK has now re-introduced himself into the life of the child. If MK returns to Calgary, the child will enjoy maximum contact with both parents. That cannot be too traumatic for the child.

[ 166 ] I note that SK is willing to co-parent. I do not believe MK is a willing co-parent. He is the friendly parent. She is not. She cannot distinguish if the more important relationship for her child is with SK or whether it is with her father or her brother. Since she moved to Ontario she has been making it most difficult for SK to exercise access or for him to be kept informed of his son’s progress. [ 167 ] In my opinion MK manipulated the judicial system. She used the Emergency Protection Order legislation as a sword and not as a shield.

She placed SK in a very difficult situation and she left without permission of any court to take her son to Ontario. She knew she needed the court order in that connection before she left. She acted in a pre-emptive manner and without court permission. She is not as naïve respecting her legal obligations and rights as she tried to portray in her testimony. [ 168 ] By leaving and living in Ontario since April 2014 she has gained a tactical advantage in the custody dispute.

If I allowed her application to remain in Ontario with her son until a full hearing or trial is held, I will maintain that advantage. [ 169 ] SK deserves to have the opportunity to have maximum contact with his child as recognized under the Divorce Act , supra . [ 170 ] MK’s proposal to grant him access is not sufficient. If she continues to live in Ontario with the child, the child will be constantly shuttled back and forth between the 2 provinces. Not only is that proposal expensive, it would not be in the best interests of the child.

If she elects to move back to Alberta with the child, it will be in his best interests as he will enjoy contact with both parents and be subject to their training, love and guidance. [ 171 ] In all of the circumstances, there cannot be any finding that SK acquiesced in MK remaining in Ontario through the Order of Jeffrey J. and his subsequent application to restore access with his son in July of 2015. The Order of Jeffrey J. left him no choice but to agree to its content as he was facing serious criminal charges as a result of MK’s action.

His access to his son was reserved until the criminal charges were disposed of in court. The charges were stayed on the actions of Crown Counsel in March of 2015. A lack of funds to retain counsel prevented him from launching his application until July of 2015. That is understandable in all of the circumstances. The Order of Jeffrey J. did not grant MK the right to keep the child permanently in Ontario. It only stayed the custody issue in effect until the resolve of the criminal trial. An analogy might be to compare it to a stand-still agreement in civil actions as contemplated at Rule 4.33 (1) (

b) of the Alberta Rules of Court . [ 172 ] SK’s evidence was credible and reliable. From the date of the Emergency Protection Order he wanted his son returned. The ex- parte Order of Strekaf J. confirmed that. It was only in the present application that SK was able to present his evidence and position. [ 173 ] I am concerned with the position of MK. She proposes remaining in Burlington with specified access occurring every 3 rd month in Calgary due to the transportation costs involved. However it was her decision to move to Burlington without any court order. That decision created this unfortunate situation.

By her testimony she believes, while SK’s role as a father is important, that it can be “filled by her father, brother and others in the Burlington community”. Such a belief and proposal is not in the best interests of their child. MK has demonstrated total disregard and understanding to the important role SK will play as a father in his son’s life. [ 174 ] Counsel for MK provided some literature and case authorities in his final submissions to suggest a young child should not be away from his primary care giver for more than 3 or 4 days at any given time.

The only evidence before me as to any stress which the young child experienced was the evidence of MK as to an initial temporary state experienced when he returned to Burlington after the initial visit to his father in Calgary. That evidence was not sufficient to convince me that the young child would suffer from any emotional stress, bearing in mind these Reasons will direct he will see his father for both a longer and more frequent period. [ 175 ] I distinguish the case authority cited to me by MK’s Counsel.

Those decisions involved a party seeking to take the necessary and appropriate steps dealing with custody and mobility before leaving the jurisdiction. They are not decisions involving a party acting unilaterally without court approval. The one cited decision, which might not be regarded as falling into the latter category was a decision of the Ontario Court of Justice in White v Noel , 2014 ONCJ 555 . In that case the Judge noted the mother had a 2007 custody order which gave the father access. The order also provided the mother not remove the child from the jurisdiction except for holiday purposes.

In the summer of 2012 the mother vacationed in New Brunswick. After seeking legal advice she decided to move her home permanently to New Brunswick and bring a motion to allow her custody in New Brunswick. Before she could bring her motion she was served with the father’s contempt motion. The mother brought a motion in Ontario to relocate to New Brunswick. The father responded by bringing a cross motion to vary custody. [ 176 ] The Judge factually determined the father only wished the mother to return to Ontario where the father could enjoy continuing access as had occurred from 2007 to 2012.

The Judge determined he was satisfied with the custody regime proposed by the mother and was not satisfied with the “poor” custodial plan proposed by the father. The Judge decided a return of the child to Ontario would be upsetting to the child and to the mother. It would not be in the child’s best interests as weighed against the principle of full contact with the access parent-the father. The mother’s motion was in essence a mobility application. [ 177 ] That factual situation is not the same as the factual situation in the case at bar.

Here MK sought an Emergency Protection Order and then left the jurisdiction. After SK obtained the return of the child, she was successful in having the child remain in Ontario until the disposition of the criminal charges. SK was in a difficult position at that time due to the provisions of the Emergency Protection Order and the criminal charges recognizance which had been initiated on MK’s testimony and police statements without any input from him.

Here SK now seeks a level playing field in having the child returned to Alberta where proper fulsome evidence can be gathered through assessments and a full custody and mobility trial can occur. [ 178 ] It is difficult on an interlocutory application for a court to deal with the substantive issues of permanent custody, mobility and access without additional evidence. Evidence from only the parties, as occurred here, is not sufficient for a court in this case. More evidence is needed for a final decision on what is in the best interests of the child.

At the present time MK on her own initiative with her family’s assistance peremptorily left Alberta. She has created a different dynamic in that the child has been in Burlington for over 2-1/2 years before this matter could be heard on an interlocutory motion. [ 179 ] I do not accept that MK’s employment and custody options are firmly entrenched only in Burlington. She can live in Calgary

and allow her son to enjoy better parental access pending a trial on custody, access and mobility. If the child is not returned to Calgary, the passage of time will intervene and the child will be more firmly entrenched in Ontario. The child will be in school at the time of trial and he will only have seen his father on intermittent and expensive access visits. That is no foundation for a successful quest for joint custody at trial from SK’s perspective. MK’s decision to move the child to Ontario would be a permanent fait accompli in all likelihood.

Both parties need to and deserve to have the issues tried on an equal opportunity basis and with the right to provide a level evidentiary base without one party presenting the case from an advantageous position. [ 180 ] The matter is very aptly put by Manderscheid J. in this Court in S. (C.L.) vs S. (B.R.) , 2013 ABQB 552 where he stated at para 86: The Plaintiff’s choice to move herself and the Children without court authority is genuinely unfortunate. The move to Calgary has caused disruption to the children, and the move back to Cold Lake will do the same.

However, that is no basis for the Court to abdicate its supervisory role in this family law matter and in effect sanction the Plaintiff’s actions, as a fait accompli . [ 181 ] In accordance with s.16 (10) of the Divorce Act , supra , maximum contact between the child and each parent is to be facilitated, if at all possible, and is compatible with the best interests of the child. Returning the child to Calgary is possible and it will allow the child to have maximum contact with both parents. [ 182 ] As a result SK’s application is granted.

MK’s application to be permitted to remain in Ontario pending a full trial on the matters of parenting and mobility is refused. [ 183 ] MK is ordered to return the child to Calgary, Alberta by July 10, 2017, failing which MK shall attend at the Court of Queen’s Bench of Alberta, Calgary Court Centre, in Calgary in the Province of Alberta on July 18, 2017 at 10:00 a.m. to show cause why she should not be held in contempt. [ 184 ] Once the child is returned to Calgary by July 10, 2017 neither party shall remove the child from the Province of Alberta without a court order provided in the presence of both parties. [ 185 ] MK shall be given possession on July 1, 2017 of 407, 355 Taralake Way NE, Calgary, Alberta until further Order of this Court.

The child’s bed, furniture and toys shall be retained at that address. MK is to advise SK by June 1, 2017 whether she shall be taking possession of that home.

If she does not provide that notice to SK by that date, SK shall be entitled to possession of the home and the child’s bed, furniture and toys located there. [ 186 ] If MK elects by June 1 st , 2017, that she and the child will not be living at 407, 355 Taralake Way NE, Calgary, Alberta, she shall advise SK by June 1, 2017 the address she and the child will be living at in the City of Calgary. [ 187 ] After July 10 th , 2017 MK and SK shall have joint custody of the child with MK having the primary day to day care of the child. [ 188 ] SK shall be entitled commencing July 11th, 2017 to specific overnight access of the child for 14 days each and every month thereafter.

Such access shall commence on the 16 th day of July at 5:00 p.m. and shall continue until the 30 th of July at 5:00 p.m.

Such access shall continue commencing at 5:00 p.m. on the 16 th day of each and every month thereafter and shall continue for 14 days until 5:00 p.m. on the 30 th day of each and every month thereafter until further order of this Court. [ 189 ] When the child is not in the care and control of MK or when SK is not enjoying his said specific access, the party with whom the child is residing shall allow the other party to telephone or “skype” the child for 15 minutes every other day commencing on the 2 nd day after the child has been provided to the physical care of the other party.

Such telephone access shall occur between the hours of 6:00 p.m. to 7:00 p.m. every alternate day. [ 190 ] If MK elects not to return to live in Calgary, SK shall enjoy joint custody with her but SK shall have the primary care and control of the child in Calgary. He will be entitled at his expense on any date after July 11, 2017 to travel to Burlington, Ontario to take custody of the child and return the child at her expense to Calgary. He shall provide MK 2 days’ notice of his planned travel to take custody of his son.

SK shall have the assistance of the police as set out in the penultimate Paragraph of these Reasons to enforce the transfer of the custody of his son in accordance with this Paragraph.

If MK does not provide the necessary child airfare travel funds to return the child to Calgary in accordance with the terms of this Paragraph, SK shall pay the child’s travel expense and he shall be entitled to claim the child’s travel expense from MK. [ 191 ] If MK elects not to return to live in Calgary, she shall be entitled to enjoy specific access to the child for a period of 10 days’ overnight access in the month of August and each and every month thereafter only in the Province of Alberta.

The parties shall arrange the said dates of the 10 day overnight access between themselves, failing which they are at liberty to apply to this Court for the setting of the dates. [

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