Court of Queen’s Bench of Alberta Citation: Mezo v Watts, 2020 ABQB 771 Date: 20201210 Docket: FL03 61184 Registry: Edmonton Between: Melanie Mezo Appellant - and - Christopher Michael Watts Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.S.

Feth _______________________________________________________ [ 1 ] Melanie Mezo (the Mother) appeals from a Parenting Order of the Provincial Court of Alberta (the Parenting Order) granting Christopher Watts (the Father) primary parenting of the parties’ 5 ½ year old daughter and denying the Mother’s request to relocate the child from Hinton, Alberta to the Mother’s new residence in Valleyview, Alberta. [ 2 ] For the reasons which follow, the appeal is dismissed. Background

[3] The parties started living together in 2012 and acquired a home in Hinton. The child was born in Hinton in February 2014.The Mother and the Father married in November 2015. [4] The parties had a lake property in British Columbia. The Mother lived there with the child for approximately two years,commencing in March 2015 and primarily while attending a training program.

The Father regularly commuted to the lake property onweekends while continuing to work in Hinton. [5] The Mother and the child returned to Hinton by June 2017 and the parties resumed living together full-time. [6] The parties separated in December 2017 and entered into a formal Separation Agreement in February 2018. They agreed to a50/50 shared parenting arrangement with some variations to accommodate the Father’s work responsibilities and the Mother’s careerdevelopment.

The Mother maintains that she continued to be the primary caregiver despite the Agreement. [7] The hearing judge characterized the period after February 2018 as a “shared 50/50 parenting regime” and “co-parenting.” Hemade no finding that the Mother was the primary caregiver after February 2018. [8] In late August 2019, without consultation, the Mother informed the Father that she was moving the child to Valleyview.

Theinformation was conveyed by telephone while the Mother was driving the child there. [9] The Father brought an urgent application under the Family Law Act, SA 2003, c F-4.5 (FLA) seeking primary parenting. Ahearing was conducted over four days. [10] On November 18, 2019, the Honourable Judge J.P. Higgerty pronounced the Parenting Order supported by oral reasons (theReasons). Primary parenting was given to the Father, with the Mother receiving specified access including every second weekend,various holidays, and alternating weeks during the summer.

Shared decision-making was directed, except that the child’s residence wasto remain within 25 kilometres of Hinton. Grounds of Appeal [11] The Mother submits that the hearing judge erred as follows: a. Failing to correctly apply the legal test for determining the parenting regime after the Mother’s relocation, including: i. Not recognizing the Mother as the primary caregiver and the deleterious effect of altering the relationship between theMother and the child; ii. Presuming that moving the child to another location is never in the child’s best interest; iii.

Incorrectly comparing the option of the Mother relocating with the child to Valleyview against a status quo in which bothparents would remain in Hinton; and iv. Overemphasizing some factors, such as geographic stability, and underemphasizing or ignoring other factors, such as thehistorical care of the child and the relationship between the Mother and the child. b.

Materially misapprehending the facts, thereby affecting the result. [12] The Mother asks for the Parenting Order to be set aside and a direction that the child reside primarily with her, oralternatively, that the matter be remitted back to the Provincial Court for a new hearing. [13] The Father counters that the hearing judge committed no errors or that any errors were immaterial and did not affect the result.

Standard of Review [14] On appeal, this Court may only intervene in the decision from the court below if the hearing judge erred in law or made amaterial error in the appreciation of the facts that affected the conclusion reached: Van de Perre v Edwards, 2001 SCC 60 at para 13[Van de Perre]; MacPhail v Karasek, 2006 ABCA 238 at para 25 [MacPhail]; CZ v RB, 2019 ABCA 445 at para 12. [15] Questions of law are reviewed on a standard of correctness, while conclusions about facts, or mixed fact and law, can only bedisturbed if palpable and overriding error is shown: Housen v Nikolaisen, 2002 SCC 33 , [2002] 2 SCR 235; MacPhail at para26. [16] If the hearing judge did not consider relevant factors or evidence, the reviewing court may reconsider the evidence if theomission “gives rise to the reasoned belief that the ... judge must have forgotten, ignored or misconceived the evidence in a way thataffected his conclusion”: Van de Perre at para 15; MacPhail at para 27. [17] Parenting orders attract a high degree of deference unless the hearing judge made an error in principle: Van de Perre at para11; Nissen v Nissen, 2020 ABCA 8 at para 17.

Analysis

a) Determining the best interests of the child [18] The hearing judge correctly noted that his analysis was governed by the best interests of the child.

He considered the factorsdescribed in s 18 of the FLA, as he was required to do, and principles discussed in the associated case law. [19] When addressing mobility, the seminal authority is Gordon v Goertz, (SCC), [1996] 2 SCR 27 [Gordon].For an initial parenting application, where no material change in circumstances need be shown, the starting point is for the judge toembark on an inquiry into what is in the best interests of the child, having regard to the new family circumstances and each of the newresidential options: Gordon at para 49 and Scott v MacLean, 2020 ABCA 173 at paras 8 and 13 [Scott]. [20] The Alberta Court of Appeal in Scott pointed out at para 8: The inquiry is future-looking; the court must consider the impact on the children of relocating with one parent and leaving the other inanother city, or remaining with that other parent and living apart from the parent who is relocating. [21] The Mother submits that in undertaking the inquiry into the child’s best interests, the hearing judge was required to “firstassess who the primary psychological parent is” (purportedly relying on comments in Gordon) and that he failed to make thatdetermination. [22] Gordon contains no such requirement.

The hearing judge was required to consider several factors, without a specificsequencing or priority, including the relationship between the child and each parent, and to weigh those factors in arriving at the child’sbest interests. Characterizing one of the parents as a “primary psychological parent” is not a prerequisite. [23] An assessment of the relationship between a child and each parent does not necessarily invite a finding that one parent is theprimary psychological parent. For example, shared parenting and co-parenting might result in neither parent having primacy.

However,the inquiry into the parental relationships with the child does demand consideration of the particular role and the emotional andpsychological bonding each parent enjoys with the child. [24] In many circumstances, especially where one parent is the custodial parent or has a long-standing role as the only primarycaregiver, maintaining the psychological connection between the child and the custodial parent or primary caregiver may be a significantfactor in assessing the child’s best interests: RJF v CMF, 2014 ABCA 165 at paras 27-29; MacPhail at para 33.

However, no legalpresumption operates in favour of a custodial parent: Gordon at para 48. [25] The Mother asserts that the hearing judge found the child was primarily in her care “for the majority of her life” and that toomuch focus was placed on the approximately two years of shared parenting prior to the hearing.

She also contends that hers was the only“continuous care relationship” with the child and that the hearing judge was therefore required to expressly address the extent to whichshe had bonded with the child and the effect that separation might have on the child as a result of the Mother becoming an access parent:Milton v Letch, 2013 ABCA 248 at para 15 [Milton]. [26] The hearing judge did not find that the Mother had primary care for the majority of the child’s life. He concluded only thatthe Mother was the “primary caregiver” while living at the lake property in British Columbia.

The Mother’s testimony estimated theduration of that stay as being a little more than two years. Further, the judge found that during this time, the Father made “prodigiousefforts to commute” and demonstrated a “very clear commitment” to the child. Those findings suggested a strong bond with the child. [27] On returning to Hinton, the Father was directly involved in the child’s parenting.

Following the marital separation, he was in a“50/50 parenting time arrangement.” The implication in the hearing judge’s Reasons is that the Father was substantially bonded to thechild, emotionally and psychologically, and that neither parent was the child’s primary psychological parent. [28] I find no palpable and overriding error in those conclusions. [29] Contrary to the Mother’s submissions, the hearing judge did not inappropriately focus his analysis on the parenting timeimmediately before the trial. The Reasons expressly addressed the historical parenting pattern.

Nothing in the Reasons suggests thehearing judge focused on the shared parenting timeframe to the exclusion of the balance of the parenting relationship. [30] Some of the authorities cited on behalf of the Mother involved circumstances in which one parent was the sole custodialparent or primary caregiver over most or all of the child’s life: see as examples MacPhail at para 33; Milton at para 15.

In thosecircumstances, especially where the role of the custodial parent or primary caregiver might be significantly reduced to limited accessfollowing relocation, the Alberta Court of Appeal cautioned that the judge’s analysis should address the extent of the child’s bond withthat parent and the effect a separation from that parent might have on the child.

Failing to expressly address these factors in the reasonscould result in the matter being remitted back to the lower court for a rehearing to determine primary care. [31] Here, at the time that she moved to Valleyview, the Mother was not the sole custodial parent nor the primary caregiver to thechild. Even if the child did not relocate with the Mother, she would still have meaningful access to the child, be capable of maintaining abond, and be able to provide for the child’s physical, psychological, and emotional needs.

The nature of the Mother’s relationship withthe child and the consequences of the proposed change in access did not demand the same degree of explanation mentioned in the citedcases. [32] In any event, the hearing judge expressly considered the relationship between each parent and the child. He described bothparties as having done a “pretty good job” in parenting her.

He characterized the Father as being “dedicated and capable.” Commentsabout the strength of the Father’s parenting and his active role in the child’s life necessarily implied that the Mother was not the primarypsychological parent. [33] Some criticism was levelled against the Mother for an attitude of “mother knows best” and being dismissive of contrary

perspectives, most notably those of the Father. The hearing judge expressly found that the Mother improperly used the child as a pawn to deliberately provoke and upset the Father and that she behaved inappropriately in front of the child. [ 34 ] The hearing judge therefore considered the relationship and the bond between the Mother and the child.

He also observed, by implication, some of the ways in which reducing the Mother’s parenting time would benefit the child’s emotional and psychological needs since fewer opportunities would exist to embroil the child in conflict between the parents or to expose the child to inappropriate behaviour. [ 35 ] The judge’s comments about the Mother’s relationship with the child were not restricted to criticism. He noted that the Mother was relocating to Valleyview for career advancement and commented favourably about the positive role model the Mother would offer by showing ambition in the workplace.

He stated expressly that this role is “especially good for a daughter to see because the glass ceiling in the career world still exists.” [ 36 ] I conclude that the hearing judge fully appreciated his obligation to consider the “nature, strength and stability of the relationship” between the child and each parent, as contemplated by s 18(2)(b)(vii) of the FLA .

His approach was consistent with guidance from the Alberta Court of Appeal that the focus of the analysis should be on the substantive nature of the parenting relationship with the child and the parent’s active involvement in the child’s daily life, rather than labels such a “primary caregiver” and “access parent”: POT v BEM , 2010 ABCA 22 at para 10 . [ 37 ] The Mother submits the hearing judge failed to consider the deleterious effect of altering the relationship between the Mother and the child.

As explained, I conclude that was addressed by the hearing judge in examining their relationship and the consequences of the Mother’s relocation. [ 38 ] The Mother asserts that another error was an alleged presumption by the judge that moving is never in the best interests of the child. The validity of such a presumption has been repeatedly rejected by appellate courts: see for example McAlpine v Leason , 2016 ABCA 153 at para 11 . [ 39 ] While that statement of the law is correct, the judge applied no such presumption.

He expressly contemplated the potential benefits to the child of relocating to Valleyview, but raised concern about a near dearth of “concrete evidence” explaining what the benefits might be. [ 40 ] The Mother contends that the hearing judge imposed an evidentiary burden on her as the moving parent which could not be met and effectively operated as the improper presumption.

She refers to comments from the Alberta Court of Appeal in Christmas v Christmas , 2005 ABCA 213 at para 7 where Côté JA observed that “direct evidence” of the postulated move will never be available in advance and that “it will always be necessary to draw inferences as to the future effects on relationships from existing facts and practices.” [ 41 ] The Mother’s contention mischaracterizes the hearing judge’s comment. He faulted the absence of “concrete evidence” not direct evidence. Concrete evidence has no precise legal definition, but is commonly understood to mean evidence that is tangible or specific.

Such evidence could have been advanced through definite plans the Mother had for the child’s educational, extracurricular, social, and living arrangements in Valleyview. From those plans, logical inferences could have been drawn about the life experience the child likely would enjoy after relocation.

However, little detail respecting her proposed plans was tendered by the Mother. [ 42 ] Concrete evidence might have included: details about the residence where the Mother and the child would live; the Mother’s work location, hours of work, and employer-supported parenting accommodations, thereby addressing availability and flexibility to meet the child’s day-to-day needs; specific extracurricular activities in which the child would be enrolled; the proposed school’s academic and counselling programs; daycare arrangements; religious and cultural participation; friends and family in the vicinity who might provide a support system; and measures the Mother would implement to maximize the child’s contact with the Father and extended family, including a proposed parenting

schedule for the Father and the use of technology to facilitate meaningful access from a distance. [ 43 ] The hearing judge was critical of the Mother’s “bland speculation” about an “opportunity for growth.” His comments about concrete evidence did not expose an analytical error, but rather demonstrated that he was exploring “any plans proposed for the child’s care and upbringing” as required by s 18(2)(b)(

v) of the FLA . [ 44 ] The Mother contends that the hearing judge erred in principle by comparing the status quo parenting regime in Hinton to her proposal for relocation with the child to Valleyview. She points in particular to the following comments in the Reasons: In his testimony and it was very emotional testimony, Mr.

Watts wished the matters could go just back to the way they were, which I took to be the year and a half of the shared 50/50 parenting regime and I do tend to agree with that view . [ emphasis added ] [ 45 ] While the judge noted the desirability of the status quo, he did not actually make a comparison between that state of affairs and the Mother’s relocation proposal.

The comment about tending to “agree with that view” is best understood as a lament for an option that no longer existed and some emotional comfort for the Father. [ 46 ] The judge’s understanding of the proper analysis – comparing the Mother’s relocation plan to the option of remaining in Hinton with the Father alone - was reflected in his concluding remarks. He specifically invited the parties’ lawyers to provide submissions about “what day-to-day care should look like, parenting time and the like” due to the Mother’s relocation.

He was not anticipating that the Mother would change her plans and remain in Hinton. He knew that she had already relocated. No misdirection appears in the record. [ 47 ] Next, the Mother argues that the hearing judge placed insufficient or too much weight on certain factors and ignored others. [ 48 ] The judge was expected to consider each of the factors in light of the evidence presented at the hearing, but was not obligated to discuss every piece of evidence in detail, or at all, when explaining his decision: Van de Perre at para 10 . Stressing one factor over

another is usually inevitable and an omission in the reasons does not necessarily mean that an appellate court has jurisdiction to re-weigh the evidence heard: Van de Perre at paras 10, 15 . [ 49 ] On appeal, the evidence is not to be re-weighed unless the hearing judge erred in law or made a material error in appreciating the facts: Van de Perre at para 13 . [ 50 ] The Mother submits that the hearing judge placed too much emphasis on “geographical stability,” including the child remaining in the Hinton community and her existing school.

In particular, the Mother noted that some courts have not viewed a change in school as a “major concern” for someone of the child’s age. [ 51 ] The hearing judge did not characterize the change as a “major concern.” He simply referenced a “remarkably dedicated school.” The record mentioned a counselling program at the school for children experiencing a parental separation and the Father’s favourable impressions of the school as a learning and supportive environment for the child.

Nothing suggests the judge placed undue weight on the child remaining at the same school. [ 52 ] The judge did not emphasize “geography.” Instead, he focused on the benefits found within the Hinton area including the child having access to an “excellent support network” such as her Father, a grandfather, playmates, and her school. [ 53 ] The Mother also submits that the judge under-emphasized or ignored certain pieces of evidence relevant to the child’s physical, psychological, and emotional safety.

Reference was made to stomach aches the child experienced from time to time, an isolated incident in which sealed medication was placed in the child’s eyeglass case (but not accessed by the child), and an assertion that the Father failed to adequately investigate an unsubstantiated allegation that the child had been sexually abused. [ 54 ] Nothing suggests the judge was not alive to these concerns. He was not required to catalogue every piece of evidence and comment on every factor under s 18 of the FLA in his Reasons.

As for the sexual abuse allegation, he specifically commented about the different perspectives of the parents.

He noted the Mother’s concern, but also found that her vigilance was inconsistent and “curious,” implying she might have raised the allegation in pursuit of her own interests. [ 55 ] Finally, the Mother submits that a comment from the hearing judge about the application being “easy to decide” and another that the outcome could have been predicted through participation in a judicial dispute resolution conference reveal that he did not give due consideration to the impact of the application on the psychological well-being of the child. I disagree.

The hearing judge’s comments refer to the weighing of the relevant factors and his conclusion that the balance easily fell in favour of the Father’s position. Nothing in those comments suggests he did not appreciate or properly weigh within the balancing exercise the psychological well-being of the child. [ 56 ] The hearing judge explored evidence involving the child’s physical, psychological, and emotional safety and needs as required by s 18(2)(

a) and (

b) of the FLA . The record reveals no error in law or material error in appreciating the facts such that I may re- weigh the factors in s 18 of the FLA . [ 57 ] In

summary, I conclude that the hearing judge committed no error in applying the legal test and canvassing the relevant factors in determining the parenting application.

b) Misunderstanding the evidence [ 58 ] The Mother submits that the hearing judge materially misapprehended certain facts, affecting the outcome of the application. [ 59 ] Only two illustrations are provided. First, the Mother contends the judge misunderstood a dispute between the parties about enrolling the child in French immersion. The Mother wanted the child to enroll and the Father did not. The judge referred to this as an example of the Mother being dismissive towards the Father’s views about the child’s development. [ 60 ] The Mother contends that she raised the subject and when the Father resisted, withdrew the proposal. Accordingly, she argues that the judge’s

interpretation of the example unfairly paints her as uncooperative and dismissive. [ 61 ] The hearing record shows that during the cross-examination of the Mother, she acknowledged that rather than discuss placement in French immersion with the Father, she simply told him what she intended to do. He objected, but she said that was not a “good enough reason” to stop her from proceeding. She later changed her mind.

That evidence supports the judge’s finding that the Mother was at least temporarily dismissive of the Father’s views. [ 62 ] Further, this illustration was used as just one example of the Mother being dismissive of the Father’s views on a continuing basis. The record reveals other instances. The judge’s conclusion is consistent with the balance of the evidence. [ 63 ] I find no palpable and overriding error. [ 64 ] Second, the Mother contends that the judge misapprehended an incident at a rodeo when the child was in the care of other adults. Two of the adults were male.

The child was in a public place, near a family gathering, positioned between the legs of one of the men. According to the Mother, the judge misconstrued which of the men was in close proximity to the child. [ 65 ] Nothing of consequence turns on that fact. The judge correctly observed that the child was on the Father’s parenting time. The Father sent the child ahead to the rodeo with a friend while he completed some chores, intending to join them a short time later. The Mother found the child at the rodeo, unaccompanied by the Father, and proceeded to take the child.

She then transferred the child to someone else who was leaving the rodeo while she went to work. [ 66 ] The judge confirmed that the Mother was “right to be concerned when a child appears to be not properly supervised” and noted that in light of worries around sexual abuse, “parents must be diligent.” He raised a concern, however, that the Mother then

proceeded to turn the child over to another male acquaintance and left, without communicating to the Father what she had done, and on the Father’s parenting day when he was responsible for the child’s care. [ 67 ] The Mother submits the judge concluded that due to the sexual abuse allegation, the child could not be left in the care of any “third party” and that the Mother was somehow derelict in leaving the child with another adult. [ 68 ] That contention misconstrues the judge’s concern. The Mother repeatedly used the child to “make a point” with the Father.

She was criticized by the judge for a “mother knows best” attitude, resulting in her being dismissive of the Father’s parenting skills and disrespectful to other witnesses at the hearing. She removed the child from the rodeo, when it was not her parenting time, and gave the child into the care of someone else without notifying the Father.

The real criticism was the high-handed manner in which she conducted herself, at the expense of the child and the Father, in order to make a point. [ 69 ] The Mother’s dismissive attitude and sometimes provocative behaviour were demonstrated through other evidence in the hearing record. I find no palpable and overriding error in the judge’s conclusions. Any misapprehension about the evidence was minor and did not affect the result. Conclusion [ 70 ] The hearing judge correctly applied the legal test and s 18 factors in deciding the parenting application.

He did not materially misapprehend the facts so as to affect the outcome. [ 71 ] The appeal is dismissed. [ 72 ] If the parties cannot settle the costs, they may approach me within 45 days by way of written submissions to resolve any outstanding issues. Heard on the 26 th day of November, 2020. Dated at the City of Edmonton, Alberta this 10 th day of December, 2020. K.S. Feth J.C.Q.B.A. Appearances: Bale Rivers McConnell & Company for the Appellant Christopher Stolfa McClelland Stolfa Reed for the Respondent