KDH v BTH, 2021 ABQB 548

Court of Queen’s Bench of Alberta Citation: KDH v BTH, 2021 ABQB 548 Date: 20210715 Docket: 4803 191656 Registry: Edmonton Between: KDH Applicant (Cross-Respondent) - and - BTH Respondent (Cross-Applicant) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] In this mobility case, a mother wishes to move with the separated couple’s two children from Whitecourt, Alberta to Nipawin, Saskatchewan. [ 2 ] The father, who himself has moved away from Whitecourt (about an hour away and apparently only temporarily), opposes the proposed move.

[ 3 ] I find that the children’s best interests are served by moving with the mother to Saskatchewan. B. Background [ 4 ] The parties married in February 2009 and separated in February 2020. They have two children (ages 10 and 7). [ 5 ] The parties both grew up in Saskatchewan and lived there until 2006, when they relocated (as a couple) to Alberta. They moved back to Saskatchewan in 2011, after the birth of their first child, and returned to Alberta (Whitecourt) in 2014. C.

Application of the new Divorce Act [ 6 ] The new Act came into force March 1, 2021. [ 7 ] The mother applied for permission to relocate to Saskatchewan via her family application filed January 29, 2021 i.e. about a month before the new Act came into force. [ 8 ] However, because this mobility application was not argued until May 20, 2021, s. 35.3 of the Act pulls this proceeding under the new Act: A proceeding commenced under this Act before the day on which this

section comes into force [i.e. March 1, 2021] and not finally disposed of before that day [which is the case here] shall be dealt with and disposed of in accordance with this Act as it reads as of that day [i.e. March 1, 2021] [i.e. the new Act applies]. [ 9 ] This reading of s. 35.3 is confirmed in Pereira v Ramos , 2021 ONSC 1737 (Jain J.) (para 10 ); Moussaoui v Harkouken , 2021 ONSC 1986 (Shelston J.) (paras 29 and 30 ); and Moreton v Inthavixay , 2021 ONSC 2976 (Diamond J.) (paras 35 and 36 ). D.

Burden of proof (s 16.93) [ 10 ] Among the additions to the new Act are onus provisions, assigning the onus of proof in a mobility case, depending on the pre- existing parenting. Here is s. 16.93:

(1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child. [emphasis added] Case law on s. 16.93 [ 11 ] A handful of cases have examined this provision. [ 12 ] In Cote v Parsons , 2021 ONSC 3719 , Trousdale J. found “substantially equal [parenting] time” and thus (per ss. 16.93(1)) that the wants-to-move father had the burden of showing the move would be in the children’s best interests (paras 51-53). [ 13 ] In Authier v Noel , 2021 ONSC 4673 , M.

Fraser J. found a “mover onus” where that party (the mother) had, by informal agreement, left the child in the father’s parenting for the six months preceding her application to move. The ten-year-old had been under the mother’s primary care since birth, including the first four years of separation. M.

Fraser J. focused on the period leading up to the mobility application: While subsection 16.93(2) of the Act may have applied with respect to the burden of proof prior to December 30, 2020 [i.e. place the onus on the long-time not-primary-parent father], once Lexi was left voluntarily in the [father’s] care on that date I conclude that the burden shifted to the [mother] to establish that it would be in Lexi’s best interests to relocate on an interim basis to Nova Scotia with [her] . [para 43] [emphasis added] [I wonder, with ss. 16.93(2) found not to apply, and with ss. 16.93(1) (equal or almost- equal parenting) obviously not applying, whether ss. 16.93(3) (“burden on both as default”) should have applied.] [ 14 ] In Waite v Waite , 2021 PESC 12 , Campbell J. found no order in place and thus that ss. 16.93(3) (both parents carry “best interests” burden) applied:

Section 16.93 addresses which party has the burden of proving their case with respect to the proposed relocation. The pertinent

section reads as follows [section reproduced] As counsel for the parties confirmed , there is no order, award or agreement as is contemplated by s. 16.93(1) or (2). Therefore, those sections do not apply, and each party bears “the burden of proving whether the relocation is in the best interests of the child” in accordance with s.16.93(3). [paras 14 and 15] [emphasis added]

[ 15 ] Counsel did not point me to, and I could not find, any reported case examining ss. 16.93(2) or the effect of the burden placed by it on the move-opposing parent. Application of ss. 16.93 here [ 16 ] Who bears the burden of proof here?

Parenting regime at the time of the mobility application (December 2020) [ 17 ] The first question is whether there is “an order, arbitral award, or agreement” addressing parenting time (per ss. 16.93(1) and (2)). [ 18 ] I read that requirement as focusing on the situation prevailing when the mobility application is brought. [ 19 ] In this case, parenting was governed at that time by the order of Renke J. granted December 9, 2020. (In January 2021, the mother applied, unsuccessfully, to vary that order.) [ 20 ] That order was styled “Interim Without-Prejudice Parenting and Child Support Order” and was to be “in effect until a further Order of the Court.” [ 21 ] The father did not argue, per ss. 16.94 (“A court may decide not to apply subsections 16.93(1) and (2) if the order referred to in those subsections is an interim order”), the Renke order should be factored out. (In any case, in light of my findings below, doing so would not have changed the onus placement here.) [ 22 ] The next question is whether the order “provides that a child of the marriage spend substantially equal time in the care of each party.” (If so, the wants-to-move parent has the burden of proving that the proposed relocation would be in the best interests of the child.) [ 23 ] The answer here is no.

Renke J. granted an order for joint custody and for the mother to have day-to-day care of the children, with the father to have access every second weekend (initially supervised daytime visits (first six weeks), then supervised single- overnight visits (next six weeks), then supervised two-overnight visits (next six weeks), and eventually unsupervised two-overnight visits, as of April 1, 2021). [ 24 ] That is obviously not “substantially equal time in the care of each party”, at least as ordered. [ 25 ] Did the order provide “that a child of the marriage spends the vast majority of their time in the care of the party who wishes to relocate [here, the mother]”, engaging ss. 16.93(2)? [ 26 ] The Divorce Act does not define “vast majority of [the] time.” [ 27 ] I find that, even at the highest access level (every second weekend – Friday after school until Sunday at 6 pm), which translates into two days out of fourteen (i.e. 14.3 per cent of the time i.e. 85.7 per cent of the time with the mother), the order indeed provided that the children spend the “vast majority of their time” with her. [ 28 ] The next question is whether the “parties to the proceeding substantially [complied] with [that] order.” [ 29 ] The father interpreted these words somewhat “in the air” i.e. as an independent audit of compliance (“did she comply with the order, or not?”).

One of his central arguments is that the mother deprived him of much of his per-order access time, pointing to missed access on December 13, 2020 and January 10 and 22, 2021 (per his January 29, 2021 affidavit) and, since mid-January 2021, the complete denial of access. [ 30 ] He also points to the mother’s unsuccessful attempt, before Whitling J. on February 2, 2021, to vary the parenting provisions of the Renke J. order (dropping its specified access for the father and replacing with “access as agreed by the parties”), to her unauthorized-by-order move with the child to Saskatchewan in February 2021, and to G.

Fraser J.’s March 9, 2021 order directing the mother to return to Whitecourt with the children and the mother’s unsuccessful bid, on March 11, 2021, to vary that order. (The mother did return with the children.) [ 31 ] Per the father, the mother has been in substantial non- compliance with the Renke order. [ 32 ] As discussed later, I do not agree in large part.

In any case, the asserted non-compliance (denial of some access visits) does not affect the onus placement, as explained below. [ 33 ] My reading is that ss. 16.93(1) and (2) focus on whether parenting “on the ground” squares, more or less (“substantially comply”), with parenting as ordered. Subsection 16.93(1) asks, effectively: is there an order for equal (or almost-equal) parenting and, if so, are the parties actually parenting in that way? If so, the would-be mover has the onus of showing a move is in the child or children’s best interests.

That is presumably because of the proposed major disruption of a status quo in which each parent is equally (or almost equally) involved in caring for the children i.e. an obvious earthquake (if move approved) in the children’s lives. [ 34 ] Subsection 16.93(2) effectively asks: is there an order making one parent the very clear primary parent and, if so, is that parent actually doing the vast bulk of parenting?

If so, the onus is on the access parent, to show that the move is not in the child’s or children’s best interests, (presumably) given the less dramatic (compared to equal or almost-equal parenting) shift in the child’s or children’s lives (if the move is approved) i.e. they will continue to be with the parent with whom they already spend the vast majority of the time, only now more so.

[ 35 ] Here, even if the father had received all of the ordered access time, the mother would still have been the “vast majority of time” parent. [ 36 ] Any “access non-compliance” here ended up shifting the mother’s parenting from roughly 85 per cent of the time closer to 100 per cent. [ 37 ] Given the implicit focus on the “lived reality” of the children’s lives (i.e. under ss 16.93(2), are they under the predominant parenting of one parent?), the fact that the predominant parenting has become near-exclusive is no reason to shift to the “both bear onus” under ss. 16.93(3).

The already dominant connection with one parent (here, the mother) has become even more dominant i.e. their “lived reality” is an even tighter anchoring with the mother. [ 38 ] If the parenting “on the ground” had swung the other way e.g. with the parties (for whatever reason) drifting away from the “primary care with mother” order, to (for example) a situation of more-of-less equal parenting, then the deviation of “on the ground” from “ordered” parenting would warrant a shift to “onus on both” under ss. 16.93(3).

With the “lived reality” of the children not actually squaring with the order (“mother as primary parent”), it would not be fair to require the father, as a de facto equal parent, to bear the “show move not in best interest” onus. [ 39 ] The “substantial compliance” factor in ss. 16.93(2) is effectively a one-way test: if the primary parent is actually parenting in a primary or greater way, the subsection’s requirements are met on this factor, with the onus placed on the access parent. [ 40 ] If the parenting on the ground is the other way (i.e. less than the “vast majority” required by the section), the “per-order- primary-parent” does not get the benefit of that onus placement, with both ending up with an onus, under ss. 16.93(3). [ 41 ] This is all about the best interests of the children: if their day-to-day reality is life with one parent predominantly, and if that means an onus on the access parent to show why a move is not in their best interests, why would even more time with the primary (now near-exclusive) parent undercut that onus? [ 42 ] It does not. [ 43 ] I find support here from Professor Rollie Thompson, who x-rayed these provisions in Legislating About Relocating – Bill C- 78, N.S. and B.C. (28 th Annual Institute of Family Law, County of Carleton Law Association, April 5 and 6, 2019): The fundamental premise [of ss. 16.93(2)] is that the parent with “the vast majority of the time” is the predominant primary caregiver of the child, the central figure in the child’s life, the parent whose presence and care is critical to the child’s well-being.

The other parent is much less important, and their minority of time reflects that too. … … even in a sizeable minority of cases, one parent is much more important to the child than the other. When the primary caregiving parent intends to relocate, the continuity of that predominant primary care becomes critical. The secondary policy concern – that of parental autonomy post-separation – also enters into the analysis here. In most cases with two active parents, there is a conflict between a parent’s relocation and the child’s stability.

That is not true, or much less true, in these predominant primary caregiving cases.

Continuity of care with the primary parent is more critical, such that the presumption serves both the child’s interests and the primary parent’s interests. … [pp 20-21] [ 44 ] Accordingly, I find that the requirements of ss. 16.93(2) are met, meaning the father has the “burden of proving that the relocation would not be in the best interests of the child.” Parenting regime from separation to first order (February to December 2020) [ 45 ] While ss. 16.93(2) focuses on the parenting regime (per order, arbitral award or agreement) in place when the mobility application is brought, I examine below the parenting regime in place before the December 2020 order, to the extent an earlier status quo may shore up or otherwise illuminate the onus placement. [ 46 ] In this case, just under one year elapsed after the parties separated (February 2020) and before the Renke J. order (December 2020). [ 47 ] What was the “on the ground” parenting in that period, and was it anchored in an “agreement” between the parties? [ 48 ] Here are the key facts in that period: • separation in February 2020 following an incident between the mother and father sparking charges including assault and criminal harassment against the father.

One of his release conditions was no contact or communications with the mother or their two children, except access to the children permitted by any subsequent court order; • in her statement of claim for divorce (August 2020), the mother proposed joint custody with her having “day to day care [of the children] and supervised access for the … father”; • in his statement of defence (October 2020), the father indicated agreement with joint custody and opposition to “supervised access for [him] ….” In other words, he did not (at least initially) oppose the mother’s request for day-to-day care of the children, only the supervision dimension of access; • in a notice to attend family docket court (October 15, 2020), the mother indicated a wish for (among other things) a parenting order and described the “current parenting arrangement”: “[I have] day-to-day care of the children, and the [father] is unable to have contact due to his [criminal-charges-related] release conditions”;

• in docket court (November 20, 2020), the mother received the green light for a parenting application in chambers (set for December 9, 2020) and for her mobility application (May 20, 2021); • in her family application set for December 9, 2020, the mother indeed sought joint custody with her having day-to-day care and the father having supervised access; • as expressed in his December 8, 2020 affidavit (filed in response to the mother’s parenting (in part) application), the father sought a parenting order “that includes: specified access [of] at least two weekends per month (Friday after school to Sunday evening), in addition to reasonable and generous access; specified phone call and Facetime access (at least three times per week); specified holiday access; and shared decision making.” [ 49 ] In other words, the parties headed into the December 2020 parenting application from an acknowledged-by-all status quo of her having day-to-day care of the children and the father taking an “access” position. [ 50 ] Accordingly, to the extent February to December 2020 parenting (post-separation to first order) bears on the onus placement, the children here too spent the “vast majority of their time” in the mother’s care. [ 51 ] If it were necessary, I would find that that parenting was pursuant to an “agreement” between the parties, as discussed next. [ 52 ] The father contends that the mother “denied” access during this pre-order period. [ 53 ] I reject that position. [ 54 ] First, the father’s contact with the children was barred throughout that period by a criminal-release no-contact order. (The mother acknowledged some limited contact between the father and the children in this period i.e. in breach of the no-contact order, albeit in her presence.) [ 55 ] Second, as noted, that order included an exception for access permitted by a later court order, but the father did not seek such an order at any point in that period. [ 56 ] The father was cross-examined about this (March 3, 2021): Q: … Did you see your children between February 2020 and December 9, 2020?

A: [Between] February and December 9? Yes. Q: You say in your [February 25, 2021] affidavit that the mother denied you parenting time. What exactly do you mean by that? … A: [after reviewing affidavit] Yes. Okay. Q: … it’s fair to say that you did have some parenting time between February 2020 and December 2020, correct? A: Some, yes, and the rest was denied. … Q: Why didn’t you make an application for parenting between February 2020 and December 2020? A: Why didn’t I? Q: Yes. A: I’m trying to do things as cheap as possible, one thing.

I’m just – I would hope – but I realize now that [the mother] doesn’t understand that parenting time with the father [i.e. me] is very important. I just kind of thought that she would make the right decision, but … [ 57 ] This explanation does not take the father very far. I find that he effectively acquiesced to the no-contact order (albeit receiving limited access as permitted by the mother i.e. in breach of that order).

As well, he cannot legitimately complain about the mother “not making the right decision” when the decision was whether to allow access putting him in breach of the no-contact order. [ 58 ] As well, the father has no cause to complain of being “denied” access in this period. If he actually saw more than limited, “off-order” access as important, he would have sought the mother’s agreement to a consent access order or, failing that, brought an application for an access order.

As noted, the criminal no-contact order would have deferred to any such agreed-to or ordered access for the father. [ 59 ] All to say: if it is necessary to characterize the February-to-December 2020 parenting for onus purposes, I would find that the

“vast majority of time with mother” parenting was pursuant to an agreement (however informal) between the parties i.e. an implicit agreement reflected in the father’s acquiescence to the no-contact order. [ 60 ] Accordingly, to the extent that the pre-order status quo has any bearing on the onus placement here, the February-to- December 2020 parenting mirrors that of the parenting since then i.e. with the mother providing the “vast majority” of care to the children. [ 61 ] This confirms, or reinforces, the “onus on father” outcome of the ss. 16.93(2) examination. [ 62 ] Before turning to the father’s “move not in best interests of children” arguments, I outline the Divorce Act ’s “best interests” factors.

E. Best interests of the child (statutory provisions) [ 63 ] The new Divorce Act confirms the “best interests of the child” test for mobility applications, per the new s. 16.92 and adds a handful of new factors to consider:

(1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in

section 16 , (

a) the reasons for the relocation; (

b) the impact of the relocation on the child ; (

c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons; (

d) whether the person who intends to relocate the child complied with any applicable notice requirement under

section 16.9 , provincial family law legislation, an order, arbitral award, or agreement; (

e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside; (

f) the reasonableness of the pro posal of the person who intends to relocate the child to vary the exercise of parenting time, decision- making responsibility or contact , taking into consideration, among other things, the location of the new place of residence and the travel expenses; and (

g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance .

(2) In deciding whether to authorize a relocation of the child, the court shall not consider , if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate . [emphasis added] [ 64 ] The

section 16 factors (invoked per ss 16.92(1)) are:

(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being .

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (

a) the child’s needs , given the child’s age and stage of development , such as the child’s need for stability ; (

b) the nature and strength of the child’s relationship with each spouse , each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (

d) the history of care of the child; (

e) the child’s views and preferences , giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate , in particular with one another, on matters affecting the child;

(

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence ; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (

h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order. F.

Father’s “move not in best interests of children” arguments [ 65 ] With the father bearing the onus here i.e. with the move presumed to be in the children’s best interests, I focus on his arguments for why the move should not happen i.e. instead of a full canvass of “best interests” factors. [ 66 ] Here are the father’s “best interests” arguments, with my assessment following each one. (The subheadings are drawn from the father’s brief.) Existing custody arrangement and relationship between children and custodial parent [ 67 ] The father first argued: The interim [Renke J.] order provides for primary care with the mother.

While it is not denied that the children have a relationship with the mother, the [Supreme] Court in Gordon [ v Goertz ] was clear that this best interests’ analysis “does not begin with a legal presumption in favour of the custodial parent. [ 68 ] As explained above, per ss. 16.93(2), and in the circumstances here, the analysis does begin with such a presumption. [ 69 ] I have already outlined my findings on the division of parenting during February-to-December 2020 (post-separation, pre- first-order period) and since then (post-order period).

Below I examine, on the sparse evidence available, parenting during the parties’ time as an intact family. [ 70 ] In his brief, the father stated: “During the relationship, the parties shared in the daily care of the children.” But he provided no evidence of the particular “division of labour” between the parties or anything from which I could gauge how the parties shared parenting (i.e. their respective contributions to parenting) and, by extension, the relative closeness and bonding of the children to each parent. [ 71 ] I infer that the mother was the primary parent even before separation, for these reasons: 1. the February-to-December 2020 status quo (mother as clear primary parent) came from somewhere.

It is hard to imagine that the parties were equal or almost-equal parents in their ten years together and that such parenting essentially evaporated on separation without

any reaction from the father. Instead he appears to have simply acquiesced to the mother having “vast majority of time” parenting, initially because of the no-contact order (which, again, made an exception for any later access order) and, later, when access-level parenting (and supervised, at that) was ordered for him.

If he had been the primary parent, or a co-lead parent, or roughly equal parent with the mother, pre-separation, he would presumably not have been content with no (or limited) access for almost a year (February to December 2020); and 2. the father swore (February 18, 2021) affidavit that “I was very involved in their lives when I was in a relationship with the [mother] [i.e. pre-separation] and [the children] have a fundamental right to have their father continuously involved in their lives.” But he did not provide any details of that involvement i.e. explain what particular parenting roles or activities he led or participated in, how often, to what degree, with which children (if different for the two children), when, how, and with what outcomes.

I infer that, if he had played a leading role in any particular dimension of the children’s lives, he would have provided at least some particulars (i.e. some evidence) of such involvement. [ 72 ] It is true that the mother did not provide much evidence on pre-separation parenting.

But given the acknowledged as-of- separation starting point here (mother as primary parent), the continuation of that parenting from separation (February 2020) to the first and still-prevailing order (Renke J.’s) (December 2020), and onwards from that order to the present, the father had a practical onus to show, if possible, that he had more than a minimal pre-separation parenting role i.e. if he wished to show that the per-order parenting and “on the ground” parenting since the order was somehow not a representative sample of the parties’ overall parenting i.e. since the arrival of their children.

But he did not discharge that onus. [ 73 ] The father provided no evidence of any subpar care of the children by the mother or of anything casting any doubt about the existence of a very tight bond, congruent with “vast majority of time” parenting over their entire lives, between the children and the mother. [ 74 ] The father’s acknowledgement of merely “a relationship” between the children and their mother is telling, not about the mother and the children, but about him. He is clearly underplaying the significance of this obviously central, deep and longstanding relationship.

Existing access arrangements and relationship between the children and the access parent [ 75 ] The father here argued: The [Renke J.] order provides specified access for the father. It is submitted that the mother’s unilateral request to move to Nipawin will undoubtably impact the father’s ability to exercise access with the children. The mother has a blatant disregard for court orders and has been found in contempt of the current parenting order.

The mother refused to follow Justice Renke’s order, refused to follow Justice Whitling’s order, refused to accept Justice Fraser’s order, and is now attempting to appeal that order. The father has diligently followed the [access] arrangement and readily volunteered to adjust the parenting arrangements to better meet the needs of the children. The mother previously took issue with the overnight access, and the father volunteered to take it slow and temporarily stick with day access.

The mother instead chose to deny any and all access. [ 76 ] Here are my findings on access issues. [ 77 ] I first note that it was the mother who applied for the first parenting order, seeking (in part) supervised access for the father. As already noted, the father made no application of his own during the February-to-December 2020 period. [ 78 ] Concerning the access impact of the proposed move, I will address that below. [ 79 ] As for “blatant disregard for court orders”, I disagree. [ 80 ] A critical factor here is responsibility for missed scheduled access.

The father pins the blame on the mother, exclusively. He charges the mother with alienating behaviour and allowing these relatively young (10 and 7) children to call the shots on whether access visits occur. Per him, she has not done enough to support the children’s relationship with him and to make the access visits happen. [ 81 ] The mother points to the children’s unwillingness, at times, to go for access visits.

The mother says that the children are sometimes fearful of the father, not because of any abuse, mistreatment or subpar care of them by him, but because that they have seen and heard him verbally abuse her and act in angry, unpredictable, and alarming ways. Per her (from a cross-examination on May 6, 2021): Q: … are you suggesting that [the children] spending time with their father is going to cause them physical abuse? A: They have been subjected to mental abuse. Q: Okay. And can you specifically … A: On film [i.e. as filmed], him screaming about killing me on film – Q: All right. A: -- in front of them.

Him trying to pick a fight with their [maternal] grandfather in front of them. Q: Okay.

A: Them growing up in a household with smashed things and not a TV because Dad broke it. Like, this isn’t a new issue. Q: Okay. But, again, these issues are between [the father] and you and possibly your father. He’s not – A: Well, growing up in a house where Dad is smashing things constantly or hearing someone threatening to kill your mother, that does affect children. You can’t say it doesn’t. Q: Okay. But, again, you’re not a psychologist, correct? A: I’m a mother. I know about my children. [ 82 ] She also said the children are not keen to overnight at the father’s home.

While her evidence is sparse, one factor seems to be divided attention at the father’s home (i.e. as between the children and the father’s new partner’s children) or possibly something else negative about the interactions between the two sets of children.

Per the mother’s January 20, 2021 affidavit (para 4(c)), concerning the children’s visit with the father on Christmas Day 2020: “None of the other 4 kids were there so the boys were happy about that.” [ 83 ] As for the frequency of missed access visits, the father said the mother “followed the [Renke] order until approximately January 10, 2021. [She] then unilaterally denied access. [She] filed an urgent application on January 20, 2021 attempting to vary Justice Renke’s order. [She] claimed that the supervisor [i.e. the father’s new partner] was not supervising at all times and that the children did not want to attend for visit.

I filed a cross-application for police enforcement and contempt of a court order.” [ 84 ] Whitling J. dismissed both applications. [ 85 ] In cross-examination on May 6, 2021, the mother was asked about her efforts to encourage the children to go for access visits (here focusing on the initial six-week period of daytime Saturday and Sunday visits every two weeks): Q: ... did you ever say … to … the supervisor, that the children didn’t want to come [for access visits] and you were going to respect their wishes? A: I don’t recall saying that, exact words. Q: Okay.

A: I did advise her of the children’s discomfort a couple times and if she had another idea of what we could do or what. But I did everything in my power to follow the [Renke] court order. Q: All right. So did you ever say in any roundabout way that if the children didn’t want to go, you weren’t going to force them? A: I said multiple times that I won’t physically drag them to the vehicle. But I’ve always respect that if they have a suggestion when the kids are uncomfortable, to let me know what it is. [ 86 ] The first overnight access visit was to happen January 23-24, 2021.

Per the mother, the kids were “uncomfortable” about overnighting. As I understand it, no access happened that weekend (daytime or overnight). [ 87 ] The mother was extensively cross-examined about this (May 6, 2021, pp 21-24). Asked to explain the children’s reluctance to go, she said (in part): “I never didn’t allow [the father] to take them. That’s [the time] when [the father] had the conversation with [the older son] and told [him] he was going to get … [me] arrested if [that son] didn’t come with him.” If I understand correctly, this led to both boys saying that would not go on any access visit that weekend.

Per the mother, she could not make them go; per the father, the mother made insufficient efforts to encourage and, at the end of the day, require them to go. [ 88 ] Separate access failures happened when the mother relocated temporarily to Saskatchewan.

Around January 23, 2021, the father sent a text message to an acquaintance of both parties implying that he intended to kill the mother: her February 1, 2021 affidavit, ex B. (The father has been charged with uttering threats as a result.) [ 89 ] The mother learned of the father’s threat, felt fearful for herself and the children’s safety, and travelled to Saskatchewan (close to her family) to get some distance between the father and themselves. [ 90 ] The father did not initially know that the mother had gone to Saskatchewan.

He eventually learned they were living out there and applied for, and obtained, an order from Fraser J. on March 9 directing the children’s return to Alberta by no later than March 12 (which the mother complied with), finding the mother had breached the Renke order access provisions (by not having the children available for access while out of the province), adding a police-enforcement clause to that order, and tagging the mother with costs. [ 91 ] The mother applied to Fraser J. on March 11 to reconsider his order, which he declined to do.

She has since appealed that order to the Court of Appeal. [ 92 ] On March 22, the mother applied to the Court of Appeal for permission to relocate to Nipawin pending the appeal and also a stay of Fraser J.’s order. [ 93 ] On April 1, Slatter JA denied such permission and a general stay of the order; however, he did order a partial stay (freezing the access-enforcement provisions directed by Fraser J. including police enforcement) and directing that the father’s access continue to be supervised: see Hoda v Hoda , 2021 ABCA 122 . [ 94 ] Backing up slightly, around March 26, at an access exchange, the details of which are uncertain (given conflicting accounts by the parties), the mother and the father had a confrontation which led to the father being charged with failure to comply with a court order (two counts), a breach of recognizance, a breach of a Protection Against Family Violence Act order, and uttering threats.

[95] As I understand it, the father has pleaded not guilty to all the noted criminal charges (February 2020, January 2021, andMarch 21). [96] As for access since April 1 (not police-enforceable in light of the partial stay), the father again reports being “denied” access. [97] The mother reports that, as before her temporary relocation, she has made the boys available for access visits, includingdriving to the exchange point and allowing the father to see and speak with the children about going with him, but they continue to resistgoing with him for access visits; [98] I find that the mother was not the effective cause of the majority of the access failures: • when access initially contemplated the father picking up the children at her home, she did not prevent them from leaving herhome; • she did not prevent the father from communicating with the children on such occasions i.e. block him from trying to convince thechildren to go with him for access visits; • while on occasion she may not have succeeded in convincing the children to go for visits, the father was not able to do any betterhimself i.e. in his direct communications with them.

As much as he criticizes her efforts to make access happen, he did no better with hiscoaxing efforts; • when the Renke order contemplated access beginning at an exchange point, the mother brought the children to the agreed place,where (again), on occasion, neither parent could convince the children to go with the father.

As noted, that has continued since April 1; • Whitling J. ruled against the father’s application to make access police-enforceable; • the father did not counter the mother’s evidence of the children’s occasional fear or discomfort about going for access with him.His evidence here was limited to “When the children are in my care, they are happy, engaged, and in a safe and loving environment.”However, he did not contest that they occasionally have resisted access or their stated grounds for resistance; • the parties agree that the children should receive counselling, focusing (in part) on adjusting to their parents’ separation, including(presumably) feeling positive about interactions with both parents.

They sparred on whether the mother made sufficient efforts to getsuch counselling rolling. Per her, the children received some (limited) counselling at school, which was interrupted by the pandemic, andthey have only recently (April 2020) resumed counselling. The mother observed that the father could have made or at least suggestedcounselling arrangements on his own.

The father presented no evidence of counselling-related efforts of his own or even requests orsuggestions that counselling be pursued for “access resistance” at a pace or in a format different than what the mother pursued; • at the application on May 20, the parties advised that they had recently agreed to an order appointing counsel for the children andhad submitted the order for filing. (I now have a copy of this order, granted by Belzil J. on June 8; it contains what appear to be thestandard provisions for such orders.) Neither party requested that the mobility application be adjourned pending the appointment of such counsel, the completion ofinterviews with the children, or anything else on that front.

With the father advancing the position that the mother was alienating the children and thus responsible for the noted access failures, andwith illumination of both aspects potentially available via the counsel-for-children process, and with no request for an adjournment fromthe father, the force of the father’s “mother is alienating and responsible for access failures” is diminished.

If he actually believedstrongly in either aspect, he would presumably have wanted every available window opened, including wanting whatever assistancecould be obtained via the efforts of children’s counsel; and • Fraser J. has already ruled that the mother should not have relocated without advance permission and that she was responsible forthe missed access while she was in Saskatchewan (three weekends total in February and early March).

That order is under appeal but,until it is set aside or varied (if at all), it stands. [99] On the subject of children resisting access and the access-encouraging or access-requiring efforts expected of primary parents,I note the comments of the Ontario Court of Appeal in Godard v Godard, 2015 ONCA 568 (appeal of contempt order against primary-parent mother): Although a child’s wishes, particularly the wishes of a child of S.’s age [12 or 13], should certainly be considered by a court prior tomaking an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision tocomply with the access order up to the child.

As stated by the motion judge, Ontario courts have held consistently that a parent “hassome positive obligation to ensure a child who allegedly resists contact with the access parent complies with the accessorder”: Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v.Stuyt, (Ont. S.C.); Stuyt v. Stuyt, (Ont. S.C.); and Hatcher v. Hatcher, (ONSC), [2009] O.J. No. 1343 (Ont. Sup.Ct.). No doubt, it may be difficult to comply with an access order, especially as children get older.

Parents are not required to do theimpossible in order to avoid a contempt finding. They are, however, required to do all that they reasonably can. In this case, themotion judge inferred deliberate and wilful disobedience of the order from the appellant’s failure to do all that she reasonablycould: she failed to "take concrete measures to apply normal parental authority to have the child comply with the access order".

As the motion judge noted, the appellant had been put on notice in prior proceedings that more than mere encouragement was required.For example, in response to the submission of her counsel on November 28, 2014 that “any type of a forced provision I don’t think isgoing to help at all”, MacDonald J. asked:

[W]hat does the mother do when this child doesn’t want to go to school or doesn’t want to go to the dentist? What are her mechanisms? Right? … Does this child have an allowance? Does she have a hockey tournament that maybe she’s not allowed to go to if she doesn’t go to see dad before? Are there things she could do to force her to go short of the police attending at her house and physically removing her? Despite this, it is clear from her affidavit that the appellant took no further steps. She did not go beyond mere encouragement to attempt any stronger forms of persuasion.

In our view, there was ample evidence in the record to support the motion judge’s conclusion that the appellant [mother] essentially left the decision concerning compliance with the access order up to S .

For example, the motion judge cited an email sent by the appellant to the respondent on January 27, 2014, in which she wrote: “I spoke with [S.] and she would prefer to stay here this weekend.” The motion judge referred to another email sent by the appellant on March 4, 2014 in which she stated: “[S.] is getting older and is more than capable of deciding when she would like to go to your house to visit.” Finally, the motion judge referenced an email sent by the appellant to her lawyer on November 14, 2014, in which she described how she tried to ask S. why she did not want to visit her father and stated: “[i]f she wanted to go we had to know.” It is possible that nothing short of physical force could have brought S. to the access visits.

However, this does not excuse the appellant given the motion judge’s finding that she has not done all that she could to attempt to comply with the access order. The motion judge found that despite being on notice that attempts at stronger forms of persuasion may be required, the appellant did not go beyond mere encouragement .

In these circumstances, the motion judge properly concluded that deliberate and wilful disobedience was established beyond a reasonable doubt. [paras 28-33] [emphasis added] [ 100 ] The father in the present case did not point to particular access-encouraging or access-requiring efforts open to the mother and not pursued by her. [ 101 ] Beyond that, the father refuses to recognize the contributions of parental conflict, and particularly his material contributions to that conflict, to the children’s reluctance to see him. [ 102 ] In SAM v MPM , 2020 ABQB 462 , I considered, and rejected, a father’s “mother alienating children” argument where parental conflict was a major aggravating factor: I find that the father has not proven alienation on the evidence here: • much of the “alienation evidence” is conflicting, with the parties painting radically different pictures of the events and actions in question, and I am not able to resolve the conflicts on the basis of affidavits alone; • the father did not present any expert evidence supporting his “alienation” view.

I recognize that, per VMB v KRB [10] , “[t]here is no rule of law that a finding of alienation can only be made based on expert evidence.” But apparently no-one – psychologist, counsellor, children’s counsel, or otherwise – sounded these children for their reason(

s) for no contact, perceptions of the parental conflicts, current conditions, or what might improve relations with their father; ... • the father acknowledged that parental conflict is another cause of the no-contact decision: “… the relationship difficulties between the father [and the two older children] stem both from some alienating behaviors exhibited by the mother and from alignment as a result of the high conflict between the parents” (brief, p 4). However, the father did not attempt to explain the relative causative impact of the alleged alienation and the parental conflict.

If no alienating behavior had occurred, would the high levels of parental conflict nonetheless have led to no contact? Regarding the older son, the father expressly referred to the impact of parental conflict on him, without attempting to explain the relative impacts of the alleged alienation and such conflict; ...

With sharply conflicting evidence from the parties on the allegedly alienating actions by the mother, the father’s limited perceptions of what actually drove the children’s no-contact decisions, the scant evidence in support of those perceptions and its equivocal nature (not necessarily signaling alienation), and no evidence (direct or indirect) from the children themselves, I cannot find that the mother alienated the two older children against the father or, if she did in any way, that it sparked their decisions to have no contact with him . [paras 17 and 19] [emphasis added] [ 103 ] The same can largely be said here.

The father here does not acknowledge any responsibility for the children’s reluctance to see him and has not pursued at all, or at least with any real vigour, any solutions to addressing and, ideally, eliminating that reluctance. To him, the mother bears all responsibility. [ 104 ] That position reflects remarkable tunnel vision. [ 105 ] It is the father who has “a relationship” with the children, albeit one that, on the available evidence, is strained and difficult for the children. Desirability of maximizing contact between the children and both parents [ 106 ] The father argued (in part): ...

When analyzing the best interests of the children, the Court should consider the willingness of the parent seeking custody to facilitate ... access. The Father has absolutely no confidence that the Mother will facilitate any access whatsoever if the children are moved to Saskatchewan. The Father will surely have to utilize the police enforcement clause, which becomes increasingly difficult interprovincially. The Mother refuses to provide the Father with his parenting time now. Furthermore, the Mother has not proposed any parenting time for the Father if permitted to move with the children.

If the children remain in the jurisdiction, and the Mother relocates, the Father proposes that the Mother have access 1 weekend per

month in Alberta, every spring break, fall break, one week at Christmas holidays, half of summer vacation, and alternating long weekends.

The Father is also prepared to offer generous and reasonable access as agreed to between the parties and regular Facetime access. [ 107 ] I have already rejected the father’s argument that the mother is largely responsible for the access failures to date. [ 108 ] The father is right that the mother has not proposed any post-move access terms. [ 109 ] The mother so acknowledged, but defended on the basis that proposing access terms was premature, in light of the unknown outcome of the father’s criminal proceedings i.e. not knowing whether he will be found guilty or, if so, will be incarcerated. [ 110 ] That is not much of an explanation: nothing prevented the mother from outlining proposed access on a provisional or contingent basis (“Assuming the father will be available to exercise access, here is what I propose if I am allowed to move ...”). [ 111 ] However, the mother’s materials did reflect, directly or indirectly, some “future access” terms: • the father should continue to have access; • that access should be supervised, at least initially; and • the supervisor(

s) should be the father’s father or mother, or both. [ 112 ] I also remind that it was the mother who first applied for formalized access (albeit supervised) access for the father (which was granted on that basis and which the father did not appeal). [ 113 ] I also note (or remind) that the mother arranged for (limited) “off no-contact-order” access for the father and that she arranged for, or authorized, Christmas Day 2020 access for the father, even though his formal access did not start until Boxing Day. [ 114 ] In other words, the mother has shown some awareness of the importance of access for the father, even if, at other times, she has frustrated that access (e.g. during her temporarily relocation to Saskatchewan). [ 115 ] I will address below the significance of the lack of a “specific details” access proposal.

Views of the children [ 116 ] The father argued: The children have indicated a preference to spend more time with the Father. The Father does not discuss the possibility of a move to Saskatchewan with the children; however, they thoroughly enjoy their time with the father. [ 117 ] The mother stated: Our children appear excited about the idea of moving back to Saskatchewan as their responses are very positive. It’s partially because their grandparents would be nearby and ... they have spent time and have friends in Nipawin.

The may not be as comfortable if we were moving to a brand-new city with which they were not as familiar. (January 29, 2021 affidavit). [ 118 ] As noted, despite consenting to an order appointing children’s counsel, neither party asked to delay the mobility application to factor in the results of that appointment and resulting consultations. [ 119 ] Neither did either party present any independent third-party evidence reflecting or bearing on the children’s preferences. [ 120 ] I do note that the father’s (limited) “children’s preferences” evidence did not actually reflect an apparent preference to live with him in Alberta i.e. versus living with the mother in Saskatchewan. (Per him, they simply expressed a wish for “more time” with him and “thoroughly enjoy their time” with him.) [ 121 ] I will return to this factor below.

Custodial parent’s reason for moving only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child [ 122 ] The father’s submissions here reflect Gordon v Goertz -era principles. The new Divorce Act (para 16.92(1)(a)) requires consideration of “the reasons for the relocation.” [ 123 ] The father argued: Here, the Mother asserts that the children can develop a relationship with their grandparents and the Mother will have a better support system. ... the parties have a history of travelling to and from Saskatchewan to spend time with family.

Furthermore, the Mother and Father’s families often travel to Alberta to spend [time] with the parties and their children. ... the relationship with the grandparents can be maintained with the continuation of these practices. With respect to a support system, the parties have established themselves in Alberta, and neither party struggles in their ability to meet the needs of the children. [ 124 ] The mother stated (in part): There are financial and non-financial benefits to relocating back to Saskatchewan. [Current rent on Whitecourt rental ($1,800); rent on

proposed Nipawin house ($1,200)] There is a strong family support [network] [in Nipawin] for myself, our children, and [the father].

It would be a lot easier to arrange supervised access for [the father]. [He] does not currently live in Whitecourt himself. [ 125 ] The mother also pointed to the proximity of family cabins at Candle Lake, Sask (about 140 kms from her proposed new home). [ 126 ] She also stated that she will be able to pursue her occupation (hairdresser) in Nipawin, building, or at least starting, a clientele from existing friends and relatives in the Nipawin area. [ 127 ] The father asserts that “neither party struggles ... to meet the needs of the children”, but he did not particularize, or at least offer his understanding, of the support network available and operating for the mother in Whitecourt. [ 128 ] On the other hand, I note that, per the mother, when she was living in Saskatchewan between late January and mid-March this year, her parents saw the children “four times a week approximately.” From this I infer that the maternal grandparents would play a close supporting role for the mother from their approximately 20- to 25-minute-away farm. [ 129 ] I will return to this factor below.

Disruptions to the child of a change in custody [ 130 ] The father states: The children currently have the most stability while in the Father’s care. He has not abruptly left the jurisdiction and is well-rooted in Alberta. A change in custody resulting from the Mother having primary care in Saskatchewan will significantly affect the overall well- being of the children. The Mother refuses to foster a healthy relationship between the children and their Father, and further isolating them in the Mother’s care will diminish their relationship with the Father.

In contrast, more parenting time with the Father will result in further stability and an overall improvement in the child’s health [and] well-being as the Father will promote equal access. The Father has shown a desire to co-parent with the Mother, and he attempts to shelter the children from parental conflict rather than involve them. [ 131 ] The father does not realistically address the obvious massive impact on the children of a shift in primary care from the mother, who I have found has cared for them the vast majority of the time throughout their lives.

He says he “will promote equal access.” But how does he propose to help the children adjust to living full-time with him, if “children remain in Alberta” were approved? He did not provide any real details. [ 132 ] Moreover, he does not paint an adequate portrait of life for the children if they were to shift to his care. For instance, he offered no evidence of: • where he intends to live with them long-term in Whitecourt or area. He himself relocated from Whitecourt “temporarily” to Darwell, about an hour away, where he lives with his new partner.

At the application, his counsel said he intends to return to Whitecourt (or area) but provided no timeline or any other details. He did not even offer a plan (even if contingent) for how to deal with school and extracurriculars for the children in Whitecourt if he continued to live past this summer in Darwell; • the members of his new household. The record shows the existence of his new partner, the fact she has more than one child (possibly up to four), and that one of them is a girl.

But it does not show whether his new partner is employed or not and, if so, away from home and, if so, her work schedule; his work schedule; who would look after the children during holidays and vacations and after school; the state of the relationship between the parties’ children and his new partner and also between the two sets of children; the ages, genders, interests, and activities of his partner’s children; or the physical set-up (bedrooms, bathrooms, etc.) of the father’s current home, let alone what he would look for in a new home in the Whitecourt area; or • what adjustments he would make to his life to shift from being an access parent to primary parent, including his experience (if any) in attending to their needs in every sphere of life (school; extracurricular activities; hobbies; “friend management”; medical, dental and other appointments; getting (and staying) on their wavelength when it comes to dealing with the ups and downs of life, etc.). [ 133 ] As for disruptions the other way (if the mother’s relocation is approved), access for the father would obviously be more difficult, with Nipawin approximately eight hours’ drive from Darwell and eight-and-a-half-hours’ from Whitecourt. [ 134 ] However, the children’s day-to-day family life would change much less drastically than a shift to the father’s primary care, given their longstanding “vast majority of time” with mother. [ 135 ] I will return to this factor as well below.

Disruption to the child consequent on removal from family, schools, and the community they have come to know [ 136 ] The father stated: The children have resided in the Whitecourt area for most of their lives. ... a move to Nipawin ... will disrupt the children’s school, health, extracurricular activities, and relationships with friends. The children are both attending school in Whitecourt and have established strong bonds with [their] teachers and friends. The children also play hockey in Whitecourt and have developed strong bonds with their coaches and the players they will advance with.

A relocation to Saskatchewan will remove the children from their familiar surroundings and friends. [ 137 ] The mother argued: The [Nipawin] school the children would attend is close to the [proposed] house .... I can’t say there won’t be disruption with the kids moving school [but] given the past and current Covid19 restrictions surrounding school attendance, I believe the disruption will be

minimal. They have cousins and friends their age in the area so the transition would be smooth. A good friend of mine has two daughters and a son close to [the children’s] ages, with whom the children love playing. ... I am familiar with some of the staff and teachers that [would be] teaching our kids [in grades 7-12]. ... there is a minor-hockey league [the children] could join in Nipawin. It’s important to me that they are able to stay involved in sports regardless of where they live. [ 138 ] More on this factor below.

Family violence [ 139 ] The father stands charged with approximately 15 offences, in aggregate, from incidents involving or relating to the mother in February 2020, January 2021, and March 2021 (as detailed, in brief, above). [ 140 ] His core submissions here are that he is presumed innocent and that, in any case, the allegations concern behaviour not directed at the children. [ 141 ] The mother stated (in part): Until the criminal charges are dealt with, I do not feel safe living in Whitecourt. ...

I sincerely believe that it is imperative for my safety and in our children’s best interest to allow us to relocate to Nipawin .... [ 142 ] The mother’s evidence included the following “child involved” incidents of violent or otherwise alarming behaviour by the father: • “[father] punched a hole in the kitchen cupboard and broke two chairs in front of the kids” (circa 2014-2016); • “In June 2019, we took our new camper [out] for the first time .... When packing up, [the father] had trouble getting the awning in and started to get frustrated.

I put the headphones on the kids so they would not hear him as he commenced yelling and swearing. [He] ended up tearing the awning right off the trailer and making a hole in the side of the camper where he was smashing it off”; • “[one of the children] has said he has nightmares about his dad ringing the [door]bell repeatedly and breaking down the door” (circa 2019); • “[the father] scream[ed] about killing me in front of the children and [tried] to pick a fight with their [maternal] grandfather in front of them ... [the father] was yelling and swearing like a lunatic in front of [the children] ... the kids were crying in the vehicle because they couldn’t believe that [the father] would try to fistfight their grandpa” (circa March 2021) [ 143 ] I reject the father’s “containment efforts” here i.e. to factor out or minimize the effect of these and possibly other incidents of family violence or other alarming behaviour on the basis that they were not directed at the children. [ 144 ] Paragraph 16(4)(

c) invites examination of “whether the child is directly or indirectly exposed to the family violence”; para 16(4)(

f) asks “whether the family violence causes the child ... to fear for their own safety or for that of another person.” [ 145 ] It should not surprise the father that threatening, in the children’s presence, to kill the mother and to fight the maternal grandfather would be extremely disturbing to the children and that such grossly unacceptable behaviour should count against him when gauging the children’s best interests in this “stay with mother or shift to father” analysis. [ 146 ] The father said: I concede that I do have a history of depression which I verily believe was brought on by being in an emotionally abusive and controlling relationship with the [mother].

Since our separation, I have felt exceptionally better and realized that my marriage to the [mother] was toxic and extremely adverse to my emotional well-being. (December 8, 2020 affidavit) [ 147 ] He also stated: I am currently in a positive and supportive relationship and I have been diligently working on my mental health and emotional well- being. (February 18, 2021 affidavit) [ 148 ] These statements do not take the father very far in light of the mother’s uncontradicted evidence of the noted children-involved incidents, which occurred largely post-separation. [ 149 ] I also note that the father provided no evidence of having taken or even considered anger-management counselling.

Compliance with obligations under family law legislation or an order, and the likelihood of future compliance [ 150 ] As already noted, the mother deprived the father of three access weekends during her temporary relocation. [ 151 ] On the other hand, the mother reported (January 29, 2021) affidavit that “the [father] has not financially supported us since we separated [February 2020].”

[ 152 ] That includes the pre-order period (February to December 2020) and at least the first (approximate) two months of the Renke- order period, during which the father was obligated (per that order) to pay child support of $723 monthly, starting December 1, 2020. [ 153 ] The father did not contradict that evidence. [ 154 ] On that subject, the father’s counsel posed two unusual questions to the mother in cross on May 6, 2021, when the Renke order child-support provisions (among others) were in effect: Q: Do you expect [the father] to pay child support?

A: I think he should. and Q: If you’re permitted to move, do you expect child support? A: I don’t know. A child – I don’t – no. [or possibly “I don’t know.] Child support is not something that is on my radar.

All I care about is what’s best for the kids. [ 155 ] From the non-payment of child support through to January 29, 2021, from these questions, and from the lack of evidence from the father of payment of any child support, it is possible that the father has not paid any child support at all. [ 156 ] In any case, it is clear that he paid no child support between February 2020 through to the end of January 2021. G.

Conclusion [ 157 ] The father summarized his core position this way: “I am [the children’s] father and it is in their best interests to have maximum contact with me.” [ 158 ] I disagree, and restate: the children’s contact with the father should be that which maximizes their best interests. [ 159 ] In light of: • the mother’s status as the “vast majority of care” provider from the children’s births; • the father’s acquiescence to no formally authorized access at all between February and December 2020; • his lack of acceptance of any responsibility for the children’s occasional reluctance to see him; • his lack of effort to explore the root causes of that reluctance and to pursue any solutions with any vigour; • his apparent lack of awareness of or appreciation for the tight connection between the children and their mother; • the absence of fundamental details about where the children will live with him long-term (such as when the father plans to relocate from Darwell to Whitecourt) or even what life would look like for the children in his new household; • the absence of any concrete plan for him to adjust from access to primary parent; • the absence of any convincing evidence that the mother has alienated the children from the father; • the likelihood that the mother would receive greater or at least equal “family and friends” support in Nipawin; • in any case, the proximity, in Nipawin, of the mother’s parents, who are closely allied with her and have a demonstrated history of shoring up her and her family; • both parties having fallen short, at times, on family-law obligations (father not paying required child support, mother not being present with children for some access visits); • the mother’s good-faith (if mistaken) explanation for not including proposed access-for-father terms as part of her mobility evidence; • the recent entry of a consent order for the appointment of children’s counsel, who can explore the children’s views and preferences, as appropriate, and, in any case, canvass their interests on the subject of the father’s access; • in any case, the father’s non-pursuit of an adjournment to factor children-consultation evidence into the mobility analysis i.e. in support of his allegations of alienation; • the mother’s apparent ability to pursue her occupation with equal ease, at least in time, in Nipawin; • the children already having friends and relatives in Nipawin and area; • the children’s ages, at which new friendships and sports connections can usually be easily formed; • the availability of less expensive rental accommodation for the mother in Nipawin;

• the existence of a minor-hockey program in Nipawin, where the boys can continue playing hockey; • the mother’s and the children’s existing familiarity with Nipawin and area, from having lived there before; • the coincidental easing of pandemic restrictions at schools, with the boys facing readjustments, to some degree, whether they continue schooling in Alberta or begin afresh in Saskatchewan; • the proximity to Nipawin of the father’s parents and the father’s acknowledgement that, in addition to both sets of grandparents travelling to Alberta for visits, he (and the mother and children) have travelled to Saskatchewan for visits i.e. it is likely that he will travel to Saskatchewan from time to time to visit his parents, at minimum, and possibly other relatives, which can be coordinated with access visits; • the mother’s demonstrated abilities to care for the children in every sphere of life; • the father’s willingness to expose the children to extreme outbursts of temper, through to apparently threatening the mother’s life, in some interactions with her; • the lack of evidence from him about steps taken to better manage his emotions; and • the fact that his access is currently required to be supervised, making a switch of primary parenting to him problematic (to say the least); and • the father not addressing what has changed in his circumstances that would signal no further need for his contact with the children to be supervised; the father has failed to discharge his burden to show that the proposed move is not in the children’s best interests. [ 160 ] Viewed the other way, it is plainly in the children’s best interests to be allowed to move with their mother to Nipawin, with access terms for the father to be set (and I am seizing myself of any further applications on this file) once the children’s counsel has had an opportunity to explore this issue with the children and once the parties have had an opportunity to submit a letter (maximum two pages) with their respective access proposals, such letters to be submitted via my assistant by July 30. [ 161 ] I see this decision as squaring well with ss 16(2): When considering the factors referred to in subsection [16](3) [general catalogue of best-interests factors], the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. [ 162 ] Remaining in the mother’s care as she relocates to Nipawin will plainly better serve the children’s physical, emotional, and psychological safety, security and well-being.

H. Costs [ 163 ] The mother is entitled to her costs of the application. Heard on the 20 th day of May, 2021. Dated at the City of Edmonton, Alberta this 15 th day of July, 2021. M. J. Lema J.C.Q.B.A. Appearances: Bale Rivers McConnell & Co. for the Applicant (Cross-Respondent) mother

Lonnie Allen Phillips Manucci for the Respondent (Cross-Applicant) father