St. Pierre v Brown, 2021 ABQB 28

Court of Queen’s Bench of Alberta Citation: St. Pierre v Brown, 2021 ABQB 28 Date: 20210111 Docket: FL01 30347 Registry: Calgary Between: Tammy St. Pierre Applicant - and - Jermaine Brown Respondent _______________________________________________________ Reasons for Decision of Honourable Madam Justice A. Woolley _______________________________________________________ Introduction [ 1 ] Ms. St. Pierre and Mr. Brown became a couple in 2011, moving in together in September 2012. On April 13, 2017, they had a daughter, K.B. They separated in the summer of 2018. [ 2 ] Since separation, both Ms. St. Pierre and Mr.

Brown have been actively involved in K.B.’s life, although K.B. has lived primarily with Ms. St. Pierre. A consent order dated December 7, 2018 provides Mr. Brown with parenting time every Tuesday and Thursday evening, and every other weekend for one overnight. Subsequently, the parties agreed to expand Mr. Brown’s parenting time by substituting a Friday overnight for the Thursday on the week when Mr. Brown had a parenting weekend. [ 3 ] Ms. St. Pierre seeks to change the parenting arrangement between the parties. Specifically, Ms. St.

Pierre is moving to Cornwall Ontario, the town where she grew up and where her three older children from a former relationship now live. She wants K.B. to move with her. Mr. Brown opposes the application, arguing that the best interests of K.B. would be better served by her staying in Calgary.

Issues [4] The issues are: (

a) Does Ms. St. Pierre’s move constitute a material change in circumstances? (

b) Is it in the best interests of K.B. to move to Ontario or to remain in Calgary? Material Change in Circumstances [5] Ms. St. Pierre’s planned move constitutes a material change in circumstances. While the move is prospective, it issufficiently certain to constitute such a change: Thie v Thie, 2014 ABCA 249 at para 65. Ms. St. Pierre has taken active steps towards themove, has a plan to move within the next three to six months, and has compelling reasons for moving given her relationship with herother children.

This is a change in circumstances which materially affects K.B. and which was not known or anticipated at the time of the2018 order, when Ms. St. Pierre’s other children still resided with her in Calgary: Gordon v Goertz, (SCC), [1996] 2SCR 27 at para 13. Best Interests of the Child [6] To assess the best interests of the child Gordon v Goertz at para 49 directs the Court to consider: (

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 parent; (

d) the views of the child; (

e) the custodial parent’s reasons 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. [7] The best interests of the child must be assessed in light of the factors set out in s. 18 of the Family Law Act SA 2003 c F-4.5.Mr. Brown notes and relies in particular on s. 18(b)(iii), “the child’s cultural, linguistic, religious and spiritual upbringing and heritage”.Mr. Brown is black, of Jamaican heritage and religious; Ms. St. Pierre is white and spiritual but not a church goer. Mr.

Brown submitsthat only he can provide K.B. with the support and community connection necessary to ensure her best interests growing up as a biracialchild, within her cultural and religious community. [8] The Supreme Court has confirmed the relevance of race to assessing the best interests of the child.

It said, however, that “itis only one factor to be considered by the trial judge”, and that its weight depends on the evidence and the circumstances of any givencase: Van de Perre v Edwards, 2001 SCC 60 at para 38. [9] The Court of Appeal has emphasized that in assessing mobility a trial judge must accept a planned move as a given; retainingthe status quo is not an option before the Court.

Thus, the question to be decided is, in light of that change of circumstances, which placeof primary residence is in the child’s best interests: Thie at para 11; 44-45; M.O. v C.O., 2012 ABCA 297 at para 6; MacPhail v Karsek,2006 ABCA 238 at para 31; Spencer v Spencer, 2005 ABCA 262 at para 19. [10] That one parent has primary responsibility for the child does not currently create a presumption in favour of the childremaining with that parent: Gordon v Goertz at para 47.

However, the views of the custodial parent “are entitled to great respect” and, aswell, the Court must consider “…the extent to which the child had bonded with the [custodial parent] and the effect that separation mighthave upon the child as a result of the [custodial parent] becoming simply an access parent”: B.R.H. v R.P.S., 2017 ABCA 268 at para 61,citing MacPhail. [11] To put it slightly differently, a court makes an error of principle if it does not give sufficient consideration to the effect ofremoving a child from the care of the primary parent: Milton v Letch, 2013 ABCA 248 at para 14; R.J.F v C.M.F., 2014 ABCA 165 atpara 32-33; Caine v Burris, 2016 ABQB 126 at para 31-33. [12] The Alberta Court of Appeal has emphasized a parent’s freedom to move (MacPhail at para 44-45) and has also emphasizedthat a trial judge ought not to presume “that it is never in the best interests of a child to move with his or her primary caregiver”:McAlpine v Leason, 2016 ABCA 153 at para 11. [13] Here, K.B. is only three years old.

She has lived primarily with her mother since birth. Ms. St. Pierre has been a stay at homemother or worked from home, so except when she is with her father, K.B. has been directly in her mother’s care. The close bond betweenK.B. and her mother was not disputed on the evidence. [14] Mr. Brown has been an engaged parent as well. He has arranged extra-curricular activities for K.B. and taken her to

swimming lessons. He takes her to church on Sundays when he has parenting time. He ensures that she has a close connection with his parents and other extended family, even though at this time they reside outside of Calgary. Mr. Brown ensures that K.B. is connected to her Jamaican heritage. He reports that K.B. is happy in his home and reluctant to leave at the end of their time together. This evidence was not challenged. I am satisfied on the evidence that not seeing her father on a regular basis will be difficult for K.B. [ 15 ] Ms. St. Pierre noted that Mr.

Brown has missed some of his parenting times, noting nine occasions in 2019. Mr. Brown responded that he had sought to rearrange access because of other commitments, and that Ms. St. Pierre had been unwilling to accommodate him in this respect. Even if I ignored Mr. Brown’s evidence on this point, I would not view it as significant to my analysis; on the parenting order in place in 2019, Mr.

Brown saw K.B. three times a week, which is over 150 times in a given year; missing 9 does not seem unexpected or reflective of disinterest in his relationship with K.B. [ 16 ] Given K.B.’s young age, she does not have meaningful bonds or connections in Calgary except for her parents. Mr. Brown said that K.B. has friends; however, I accept that she cannot have meaningful friend relationships or community connections given her age, Covid and that she does not attend daycare or preschool at this time. Neither Mr. Brown nor Ms. St. Pierre currently have extended family in Calgary. [ 17 ] Ms. St.

Pierre testified to the close bond between K.B. and her older half-siblings, despite the difference in their ages (her youngest half-sibling is ten years older). Ms. St. Pierre noted that K.B. and her half-siblings lived together until one year ago, and that K.B. talks about her half-siblings regularly. She expects that in Cornwall, while she does not have plans for her other children to live with her, they will come regularly to her house in part to see and play with K.B. [ 18 ] Ms. St.

Pierre also noted that she has extensive family in Cornwall, and that while she will be able to continue to work at home, and so care for K.B. herself, she will also be able to rely on her mother for assistance when she does need childcare. [ 19 ] Both Ms. St. Pierre and Mr. Brown attested to concerns with the conduct of the other. The allegations made were for the most part not well-supported by evidence. A number of the allegations related to events in the past, prior to K.B.’s birth, and some had questionable relevance to the fitness of Ms. St. Pierre and Mr. Brown to parent K.B.

Some had already been considered by the Court in prior proceedings (for example, in the fall of 2019 when Ms. St. Pierre sought to have pick-up and drop-off occur in a neutral location). Ultimately, neither Ms. St. Pierre nor Mr. Brown challenged the other’s fitness to parent. Neither sought a change in parenting time based on fitness. Both maintained that if they were granted primary parenting of K.B., they would facilitate parenting time with the other parent. [ 20 ] As a result, I do not make my decision based on fitness.

As a general matter, evidence insufficient to establish past misconduct on the balance of probabilities and which would be of questionable relevance even if established, is not helpful to a mobility analysis. The focus should be on the proposed change and the child’s best interests, with evidence provided regarding the plans each parent has for the care and upbringing of the child, including for fostering the relationship with the other parent. [ 21 ] Mr. Brown testified to the importance to him of being present in K.B.’s life to help her navigate the burdens and challenges that arise from being a biracial girl.

He noted in particular challenges for women of colour, and the burdens they face. He felt that by being able to share his experiences with her and to ensure that she was connected with her community through him, he would be best able to help her thrive. [ 22 ] Ms. St. Pierre testified that she recognized too the importance of helping K.B. in this way. She said that she had observed racism as experienced by Mr. Brown and knew the importance to K.B. of being able to overcome challenges she might experience.

She testified to steps she had taken to learn how to connect K.B. with the Caribbean community in nearby Ottawa and Montreal. She said that she would foster K.B.’s relationship with her aunt (Mr. Brown’s sister) with whom Ms. St. Pierre maintains a relationship. And she said that she would always encourage K.B. to turn to and rely upon her father if she faced challenges in this regard. [ 23 ] Given K.B.’s age, I do not know or take into account her views with respect to the move. Nor, on the facts before me, are Ms. St.

Pierre’s reasons for the move relevant to the analysis of the best interests of the child. [ 24 ] Based on the evidence as a whole, I find that it is in K.B.’s best interests to move with Ms. St. Pierre to Cornwall. In particular, I view it as in K.B.’s interests to remain with the parent with whom she has lived primarily for her whole life, particularly given her young age. I also think K.B. will benefit from seeing her half-siblings and her grandmother on a regular basis. She has limited connections to Calgary beyond her relationship with her father. [ 25 ] I accept Mr.

Brown’s evidence that as a black man he can provide support and guidance to K.B. that Ms. St. Pierre cannot. I do not think, however, that this factor outweighs the other evidence that supports K.B. remaining in her mother’s primary care. Further, while Mr. Brown would take K.B. to church and Ms. St. Pierre would not, that difference does not to me speak to either party being more suitable than the other as a parent. Both approaches are within the ordinary range of choices parents make about raising their children. [ 26 ] I do, though, view it as essential that a plan be developed to ensure that Mr.

Brown has regular and extensive parenting time with K.B. Doing so is necessary to achieve K.B.’s best interests and to ensure maximum contact between K.B. and both her parents. [ 27 ] Mr. Brown expressed concerns about Ms. St. Pierre’s willingness to facilitate his parenting time with K.B.. He and his counsel emphasized that Ms. St. Pierre’s application and affidavit did not contain an adequate access proposal.

He noted that she had resisted him taking K.B. to Florida to visit his parents for Christmas when K.B. was two (the Court ultimately ordered that he could do so) and also expressed the view that he wanted more parenting time with K.B. but Ms. St. Pierre had resisted him having it. [ 28 ] Ms. St. Pierre testified that she was willing to provide Mr. Brown with generous parenting time. She said that she was prepared to share the cost with Mr. Brown. She said that she was prepared to have K.B. spend much of the summer months with Mr. Brown, for example.

She noted that she had never interfered with his scheduled time with K.B. and that her concerns about the Florida trip had to do with K.B.’s young age, not K.B. spending time with her father. Ms. St. Pierre noted that she and the father of her other children have been successful in making decisions together in the best interests of their children, including having the children move

between the parents from time to time. [ 29 ] While I agree that Ms. St. Pierre’s affidavit does not contain a sufficiently detailed or appropriate proposal as to Mr. Brown’s parenting time, it does contain a proposal and expresses her determination to make continued parenting time for Mr. Brown “as accessible as possible”. The evidence as a whole does not justify doubting Ms. St. Pierre’s willingness to ensure that Mr. Brown has access to K.B. She has expressed that willingness, and her past conduct does not support the inference that she will interfere with parenting time granted to Mr. Brown by the Court.

She may not have wanted K.B. to go to Florida, but she did not resist her going once that was ordered by the Court. Conclusion [ 30 ] Based on the foregoing, I direct that the parenting order (as amended by the agreement of the parties) be changed to allow K.B. to move to Cornwall with Ms. St. Pierre. I also direct, in the event the parties are unable to agree to terms of access and support, that this hearing resume for further consideration of those issues. Heard on the of 8 th Day of January, 2021 Dated at the City of Calgary, Alberta this 11 th day of January, 2021. A. Woolley J.C.Q.B.A.

Appearances: Laurie Stephen, Thornborough Smeltz LLP for the Applicant Sarah E. Patrick, Knight Molloy Patrick LLP for the Respondent