Nicol v Tremblay, 2021 ABQB 6

Court of Queen’s Bench of Alberta Citation: Nicol v Tremblay, 2021 ABQB 6 Date: 20210105 Docket: 4813 005529 Registry: Fort McMurray Between: Melissa Elaine Nicol Applicant/Plaintiff - and - Jean-Paul Tremblay Respondent/Defendant Corrected judgment: A corrigendum was issued on October 6, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction and Overview

[ 1 ] This is an application by Melissa Elaine Nicol (“the Applicant”), filed on February 20, 2020, seeking permission to relocate her daughter, CJ, to Oakville, Manitoba, a community with a population of approximately 1,000 people, located twenty-seven miles west of Winnipeg. The child’s father, Jean-Paul Tremblay (“the Respondent”) opposes the application. [ 2 ] This matter was heard on September 3, 2020, at Fort McMurray, Alberta. Both parties gave viva voce evidence during the course of the proceedings to supplement the evidence contained in previously filed affidavits.

The Applicant filed affidavits sworn on October 2, 2019, February 19, 2020, respectively, as well as a reply affidavit sworn on March 19, 2020. The Respondent filed an initial affidavit sworn on October 25, 2019, and a further affidavit on March 11, 2020. During the course of the viva voce hearing, counsel also referred to an affidavit sworn by the Respondent on January 3, 2019. [ 3 ] At the conclusion of the evidence and the oral submissions of counsel, I briefly reserved my decision. The parties were advised on September 14, 2020, that the application was dismissed with written reasons to follow.

These are my reasons for decision. Facts [ 4 ] The parties are both originally from Manitoba. They married on December 24, 2007. They moved to Fort McMurray from Gimli, Manitoba, in September 2010, in conjunction with the Respondent’s employment as a member of the RCMP. They separated in September 2012, and were divorced on December 12, 2017. [ 5 ] There is one child of the marriage, CJ born October 1, 2010, currently almost 10 years of age.

The Applicant has been the primary caregiver to CJ since separation, though, as more fully discussed below, the Respondent has exercised regular and frequent access and has been very actively involved in the parenting of CJ. [ 6 ] The Applicant went to work for Syncrude when CJ was 8 months of age. She initially worked a day shift, Monday to Friday, 8:00 a.m. to 4:00 p.m. She was based in downtown Fort McMurray, later moving to Syncrude’s site north of the community. Around the time the parties separated, she changed jobs with Syncrude and began working a shift of 6 days on, followed by 6 days off.

This work arrangement continues to the present day. The Applicant requires regular child care for CJ, including regular overnights with a caregiver, given the duration of her shifts and the fact that half of these shifts are night shifts. [ 7 ] The Respondent works on a four day on/four day off work rotation. At the time of the parties’ separation, the Respondent was a member of the RCMP Emergency Response Team and, as such, occasionally worked unpredictable hours.

His RCMP duties have not included this additional responsibility for some time. [ 8 ] The Respondent had very little contact with CJ during the first five months following the parties’ separation until the Applicant found a place to live in Fort McMurray around February 2013. Even after the Applicant obtained new accommodation in Fort McMurray, the Respondent had difficulty arranging access, with the Applicant placing CJ in child care even when the Respondent was not working. [ 9 ] At the time of separation, CJ was almost two years of age.

According to the Applicant, she spent all of her days off living in Edmonton from the date of separation until she found new accommodation in February 2013. The Applicant conceded that the Respondent did not see CJ very much during this period of time due to the fact that she was commuting back and forth between Edmonton and Fort McMurray. The Respondent’s access to CJ became more frequent thereafter, though the Applicant was unable to recall the specifics. [ 10 ] The first of a series of interim orders of the court addressing the issue of access was made in September 2014.

The current parenting arrangement between the parties is set out in the order of Phillips J dated March 10, 2015, in which the Applicant has primary parenting responsibility for CJ, while the Respondent has specified access of at least 6 full days. The order provides that: The Defendant [Mr. Tremblay] shall have a minimum of six (6) specified days (including overnights) of parenting time with the child per month.

The Plaintiff shall give the Defendant at least 1 month notice of proposed dates for the Defendant to exercise access with the Child and the Defendant shall confirm which dates he is agreeable to within 1 week of receiving the proposed dates from the Plaintiff. [ 11 ] The Phillips order also provided that the Respondent was to have “reasonable and general access” at other times as agreed upon the parties.

In addition, it provided that CJ was to spend two weeks each summer with the Respondent, as well as Father’s Day and half of the Christmas holiday period. [ 12 ] The Respondent was off work for approximately 18 months due to injury commencing in June 2016, followed by a period of modified duties involving reduced hours of work from January 2018 to July 2018. On April 28, 2017, the Respondent brought an application seeking a right of first refusal to have CJ in his care or the care of his spouse when the Applicant was working.

In addition, he sought a Practice Note 7 (“PN7”) assessment to assist the court in the determination of what parenting arrangement would be in the best interests of CJ. Finally, he sought an order preventing the Applicant from withdrawing CJ from her current school without his consent or order of the court. [ 13 ] On July 13, 2017, Feehan J (as he then was) directed that the Respondent have the right of first refusal while on modified duties or on leave so as to have CJ in his care over any other third-party caregiver.

In the result, for a period of approximately one year, from July 2017 to July 2018, he and the Applicant had more or less a 50-50 shared parenting arrangement, with CJ being in his care while the Applicant was working.

On the same date, Feehan J dismissed the Respondent’s application for a PN7 assessment. [ 14 ] The Divorce Judgement of December 2017 mirrors the existing parenting arrangement that was already in place at the time, though notably does not include the terms of the Feehan order. [ 15 ] On June 15, 2018, around the time that he returned to full-time duties, the Respondent filed a further court application to vary

the terms of the Phillips order and to continue the 50-50 shared parenting regime set out in the Feehan order of July 13, 2017. The application was spoken to on September 12, 2018, and put over to December 10, 2018. Thereafter, the application was adjourned sine die and has never proceeded. The Respondent deposes that his counsel attempted to set up a four-way meeting with the Applicant and her counsel to address access on a go-forward basis, but the response was a request for financial disclosure.

The four-way meeting never took place as a result of counsel’s seeming inability to obtain mutually agreeable dates. [ 16 ] The Applicant is in a new relationship with Rocky Dempsey, a person that she met after Christmas in 2017. As of October 2018, Mr. Dempsey moved to the Applicant’s home and they lived together for approximately 6 months. However, Mr. Dempsey, a native of Bathurst, New Brunswick, has been living in Bathurst for the past two years. The Applicant maintains that they have a very positive relationship and that Mr.

Dempsey plans to relocate to Manitoba. [ 17 ] The Respondent has been in a new relationship with Susan Walker since June 2013. Together, they have a daughter, Cassandra, born on February 3, 2018. Susan, currently a stay-at-home mother, has two university degrees and spent 1.5 years working at an elementary school providing assistance to children with learning disabilities. [ 18 ] CJ is currently attending Grade 5 at Beacon Hill School in Fort McMurray. She formerly attended Ecole St. Paul School. CJ has learning challenges, including dyslexia. The Applicant acknowledges that school is “a struggle” for CJ.

Overseeing CJ’s education is but one of many points of conflict between the parties. [ 19 ] CJ also has on-going medical issues, including food intolerances regulated through dietary restrictions recommended by a specialist in Edmonton. This is, unfortunately, another point of contention between the parties. According to the Applicant, her grocery bill is routinely greater than would be the case but for CJ’s dietary requirements. She also expresses concern that the Respondent does not honour the dietary restrictions while CJ is in his care.

The Respondent, on the other hand, maintains that CJ has never been diagnosed with food allergies and that the parties were advised by medical personnel that CJ would likely outgrow these food intolerances. [ 20 ] CJ also has issues with her vision and been under the care of an eye specialist in Edmonton for the past two years. She underwent surgery in March 2020 to tighten the muscles between her eyes. Follow up medical consultations in Edmonton will be required in the near future. In addition, CJ was seen by an orthopedic surgeon in Edmonton regarding issues with her fingers that required temporary casts.

Again, follow up medical appointments in Edmonton will be required. In her November 13, 2019 affidavit, the Applicant deposes that she made six trips to Edmonton to see CJ’s eye specialist in the past year. Further trips to Edmonton are required for dental appointments given the Applicant’s reported bad experiences with dental clinics in Fort McMurray. [ 21 ] In addition to the Respondent’s regular and holiday access to CJ, he also has regular contact via video chats and telephone calls. These calls sometimes involve the Respondent’s sister, Nicole, and his Mother, both living in Manitoba.

He also deposes that CJ has regular contact with Susan’s family in Ontario. According to the Respondent, CJ is also involved in regular visits to family members living outside of Fort McMurray. [ 22 ] On October 2, 2019, the Applicant filed an application seeking permission to relocate with CJ to Bathurst, New Brunswick, the current home of Rocky Dempsey. The initial plan was to relocate to a farm in the vicinity of that community.

However, on February 20, 2020, the Applicant filed a new application seeking permission to relocate CJ to Oakville, Manitoba, a community of several hundred people approximately 45 miles west of Winnipeg. The plan was adjusted on account of the ill-health of the Applicant’s parents. Both the Applicant and the Respondent are originally from Oakville. [ 23 ] The Applicant’s Father has been the primary caregiver for the Applicant’s Mother for the past 12 years. The Applicant’s Mother has had serious medical issues since 2006 and has been wheelchair-bound for the past 4 years.

The Mother is not able to live on her own without his assistance. The Applicant’s Father suffered a serious heart attack just prior to Christmas 2019. He was also diagnosed with an advanced form of cancer that requires frequent medical trips to Winnipeg. According to the Applicant, her father’s health is “precarious and uncertain”. During the Applicants 2019 Christmas visit, her parents were “barely functioning” given their rapidly deteriorating health. [ 24 ] There is no assisted living facility in Oakville.

The Applicant’s parents are unwilling to have someone come into their home to provide long-term care. [ 25 ] CJ spent a period of approximately 5 months in Oakville during the Fort McMurray forest fire evacuation in 2016 when she was 5 years of age, including a period of 2 months attending kindergarten at the Oakville school.

It would appear that she made some friends in the local area, friendships that have been renewed during subsequent holiday visits, including over Christmas 2019. [ 26 ] In his initial affidavit responding to the request to relocate CJ to New Brunswick, the Respondent expressed his willingness to assume full-time parenting responsibility for CJ given the Applicant’s intention to relocate. He made a similar commitment in a subsequent affidavit following the filing of the current application to relocate to Manitoba.

The Applicant’s Plan [ 27 ] Through her evidence before me in court, and as set out in some detail in her affidavit sworn on February 19, 2020, the Applicant outlined the details of her proposed plan to care for CJ if the court permits CJ to relocate to Manitoba. The details of her proposed plan for CJ relative to Bathurst, New Brunswick, are set out in an earlier affidavit. There are some significant similarities between the two plans. [ 28 ] The Applicant plans to reside with her parents until such time as her home in Fort McMurray is sold and she is able to acquire a new residence in the Oakville area.

The Applicant has explored housing options in Oakville, including providing examples of available rental properties in an attachment to her affidavit.

[ 29 ] The Applicant anticipates that the move to Oakville will allow her to find employment involving a less demanding and more flexible work

schedule that will allow her to spend more time with CJ. She is anxious to stop shift work and maintains that she is mentally and physically exhausted after completing her current 6-day work shift at Suncor. She also contends that her overall income has decreased over the past three years due to a global decline in the price of oil. As such, her opportunities to work overtime have decreased. She also points to the high cost of living in Fort McMurray, the $1500 per month that she has to pay for childcare, and the high cost of extracurricular activities for CJ.

In this latter regard, she points to the Respondent’s unwillingness to contribute to the cost of these extracurricular activities as only adding to her current financial burden. [ 30 ] The Applicant sees the move as a chance to reinforce the strong relationship with CJ. According to the Applicant, they have been “inseparable” since the separation from the Respondent. [ 31 ] The Applicant has explored employment possibilities in Oakville and has an opportunity to join an aunt and uncle in their snow-removal and landscaping business.

She believes that her background in construction and the operation of heavy equipment could be beneficial in securing new employment. She testified that she had applied for a couple of positions, but was not successful. Generally, she is waiting to hear the results of this court application before exploring further employment possibilities.

Attached to her affidavit are some local job posting that the Applicant believes she is qualified to pursue. [ 32 ] The Applicant emphasizes the broad support from extended family members and friends that reside in the Oakville area, as opposed to her more limited support group that she is able to draw upon in Fort McMurray. However, the only specific relatives specifically mentioned are the Applicant’s Mother and Father and one Aunt. The Applicant is estranged from her only sibling, a sister.

According to the Applicant, she has no family in Fort McMurray and very few other supports. [ 33 ] The Applicant has explored the educational opportunities available for CJ in Oakville, including the school she would attend. This is the same school where CJ was briefly enrolled in kindergarten in 2016 at the time of the Fort McMurray forest fire. [ 34 ] In her evidence, the Applicant also referred to the availability of Sylvan Learning Centres and Kumon programs, as well as a Dyslexia Learning Centre in Winnipeg, but provided no details as to how this might factor in to her education plan for CJ.

She has done some research and is aware of financial assistance that may be available in Manitoba for such programs and appears to have some knowledge of the resources available in the local school in Oakville. [ 35 ] The Applicant has explored opportunities for extra-curricular activities for CJ in Oakville, including the local 4H Club, Girl Guides, Scouts, Cadets and other hobby groups. She referred to the presence of an indoor hockey rink in the community. [ 36 ] If permitted to relocate CJ to Manitoba, the Applicant proposed the following access to the Respondent:

a) Alternating access every other year at Christmas;

b) Alternating access every other year for the spring break; c) 2 weeks in the summer;

d) Other reasonable access through the summer break;

e) Access throughout the year as agreed to by the parties;

f) Skype, or telephone calls per week as desired by the Respondent and CJ. [ 37 ] I would note that this is essentially the same access provided for in the Phillips order save for the fact that the Respondent would no longer have the minimum of six full days (including overnights) per month. In addition, the Respondent would no longer have CJ on Father’s Day. Access to CJ during the school spring break was not mentioned in the Phillips order. [ 38 ] The Respondent, on the other hand, seeks the following access to CJ in the event that she relocates to Manitoba with the Applicant:

a) Christmas/New Years to be divided between the parties each year;

b) Every spring break; c) 6 weeks in the summer;

d) Access throughout the year as agreed to by the parties, including any long weekends that can be agreed upon;

e) Regular Skype or telephone access. [ 39 ] The Respondent was not, unfortunately, ever asked what access he would facilitate for the Applicant in the event that CJ were to remain in Fort McMurray in his care. However, I am satisfied that he would be willing to extend to the Applicant the very same access that he is seeking in this instance. The Law [ 40 ] Section 17(5) of the Divorce Act , RSC 1985, c 3 (2 nd Supp ), requires the court to determine whether a move will cause a material change in the child’s circumstances and, if so, whether the move will be in the best interests of the child.

[41] The Supreme Court in Gordon v Goertz, (SCC), [1996] 2 SCR 27, provided clear guidance to trial judges onhow to interpret and apply the terms “material change” and “best interests of the child”. The Court stated that the parent applying for themove must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

For thatthreshold to be met, the judge must be satisfied of (1) a change in the condition, means, needs or circumstances of the child or in theability of the parents to meet the needs of the child, (2) which materially affects the child, and (3) which were either not foreseen orcould not have been reasonably contemplated by the judge who made the initial order.

If this threshold is met, the judge must thendetermine what is in the best interests of the child. [42] It is common ground between the parties that the Applicant’s plan to move to Manitoba meets the threshold requirement ofdemonstrating a material change of circumstances. [43] In Gordon, the Supreme Court held that in determining the best interests of the child, a judge should weigh “the importanceof the child remaining with the parent to whose custody it has become accustomed in the new location” against “the continuance of fullcontact with the child’s access parent, its extended family and its community”: at para 50.

As this case demonstrates, these factors canvary from case to case depending upon the circumstances. Ultimately, the best interests of the child is a context-driven analysis. [44] The general framework for mobility applications is set out in Gordon as follows:

a) The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child.

b) If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

c) This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

d) The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views areentitled to great respect.

e) Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances ofthe case.

f) The focus is on the best interests of the child, not the interests and rights of the parents.

g) More particularly the judge should consider, amongst other things: (

i) the existing custody arrangement and the relationship between the child and the custodial parent; (ii) the existing access arrangement and the relationship between the child and the access parent; (iii) the desirability of maximizing contact between the child and both parents; (iv) the views of the child; (

v) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet theneeds of the child; (vi) disruption to the child of a change in custody; (vii) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [45] The Gordon framework is, of course, followed in Alberta. The Court of Appeal in Spencer v Spencer, 2005 ABCA 262,explained the second step of the framework, the weighing exercise in determining the best interests of the child.

The Court stated thatjudges must undertake a child-centred analysis of the best interests that includes consideration of all the relevant circumstances; judgesshould not determine the best interests by presuming that the status quo is always in the best interests of the child. If judges were toengage in this type of reasoning, the status quo will always tip the scales. The correct inquiry into the best interest of the child is toevaluate the circumstances as found, for example, the effect on the child of the mother/father’s relocation, compared to the effect on thechild if she/he is not allowed to move.

In other words, its impact on the child if they stay or if they go: Christmas v Christmas, 2005ABCA 213. [46] In evaluating the circumstances, judges should consider the specific factors set out in the Gordon framework: Thie v Thie,2014 ABCA 249. However, in considering these factors, judges must be mindful of two things. First, the factors are tailored to instanceswhere there is one “custodial parent” and one “access parent”.

Not every situation has a clear “custodial” and “access” parent, and so theGordon factors should be modified when parents share equal responsibility. [47] Second, the Alberta Court of Appeal in POT v BEM, 2010 ABCA 22, stated that labels such as ”custodial parent” and “accessparent” can be misleading and judges should not place undue emphasis on them: at para 10. This does not mean that judges should notconsider who is the primary caregiver; rather, judges should not place emphasis on how much time a parent spends with a child.

TheCourt of Appeal explained (at para 10) as follows: In the court below, counsel argued at length as to whether the parenting regime was more accurately characterized as a “sharedparenting” arrangement, or one where the appellant was the “primary caregiver” and the respondent as the “access parent”. Withrespect, labels such as these can be misleading. What is significant is not the label but the fact that both parents are actively involved inthe daily lives of their children.

No doubt the children spend more hours per week with their mother than they do with their father, but itcannot be said that the respondent is in any way a remote, indifferent or absentee parent, as is sometimes the case with parents who see

their children only a few times per month. [ 48 ] The Court in HB v MCN , 2018 ABQB 95 , citing H(PR) v L(ME) , 2009 NBCA 18 , outlined the general trend in the jurisprudence since Gordon . Courts tend to grant approval for a proposed move where the relocating parent is the clear primary caregiver, if the relocating parent is willing to accommodate the interests of the child and the access parent.

This often requires restructuring access and courts can order that the relocating parent should incur some or all of the increased costs of access, including through adjustments to the access parent’s child support responsibilities.

Where the relocating parent is not the clear primary caregiver and both parents share parenting time and responsibility, courts are less likely to grant approval for a proposed move. [ 49 ] At the end of the day, the sole determinant is the best interests of the child and the trial judge should assess the entire circumstances, including the parenting arrangement and the relationship between the children and each parent: MMG v JAS , 2017 ABCA 209 at para 13 ; POT v BEM at para 10 . [ 50 ] The Court of Appeal has cautioned against focusing on the relocating parent’s reasons for moving: MacPhail v Karasek , 2006 ABCA 238 at para 40 .

In Sandha v Sandhar , 2013 ABCA 259 , the Court held (at para 2): In determining whether to allow the child to go with his mother, the court must find whether it would be in the best interests of the child to go with his mother, or to remain behind in the care of the father, without the mother being in Alberta. All parties recognize that the court does not have the power to order a parent to remain or leave a particular locale. Nor should it. The court must determine what is in the best interests of the child assuming the mother leaves. That is the question before the court.

See also: Christmas v Christmas , 2005 ABCA 213 , at para 3 . [ 51 ] During the course of her evidence, the Applicant testified that she would not leave Fort McMurray without her child. What I take from this evidence is that she will not move to Manitoba if I determine that she may not take CJ with her. [ 52 ] The Applicant’s evidence raises the issue of a double bind impacting the mother. In MacPhail , at para 51 , the Court of Appeal described a double bind in the following terms: There is another issue.

The trial judge found that the Mother’s stated position at trial, that she would not move back to Medicine Hat, was an “egregious example of manipulation” by the Mother. But the Mother was caught in a quandary at this point. If she did not take this position, the court might avoid making the difficult decision it is compelled to make in mobility cases. She was in the “classic double bind” as that conundrum was described by this court in Spencer v Spencer , [2005] A.J.

No. 934, 2005 ABCA 262 , at para 18 : It is problematic to rely on representations by the custodial parent that he or she will not move without the children should the application to relocate be denied. The effect of such an inquiry places the parent seeking to relocate in a classic double bind. If the answer is that the parent is not willing to remain behind with the children, he or she raises the prospect of being regarded as self- interested and discounting the children’s best interests in favour of his or her own.

On the other hand, advising the court that the parent is prepared to forgo the requested move if unsuccessful, undermines the submissions in favour of relocation by suggesting that such a move is not critical to the parent’s well-being or that of the children. [ 53 ] The Court of Appeal expressed similar views in Brill v Brill , 2010 ABCA 229 . [ 54 ] In light of these various decisions, I do not give any weight to the Applicant’s evidence that she would remain in Fort McMurray if her application to relocate CJ to Manitoba is unsuccessful.

As such, the status quo , both parties remaining in Fort McMurray, is not an available option in the resolution of this application. [ 55 ] Finally, I would also briefly refer to the Court of Appeal’s decision in Cavanagh v Balkaron , 2008 ABCA 423 , in which it confirmed that there are no default positions or presumptions: To be clear, there are no longer any presumptions or default positions that regulate decisions as to custody and access. The sole determinant is the best interests of the child.

While other principles may be considered, particularly where both parents are equally suitable, they must be viewed and determined from the standpoint of the best interests of the child. Analysis [ 56 ] As outlined above, the Supreme Court in Gordon identified the factors to be considered by the court in a mobility application.

a) The existing custody arrangement and the relationship between the child and the custodial parent [ 57 ] While the parties are involved in a shared parenting regime, the Applicant has been primarily responsible for the care of CJ since the parties separated in September 2012, and, indeed, since birth. It is, however, also clear that CJ spends a very significant amount of time in the care of a third-party caregiver on account of the Applicant’s work

schedule and her decision not to allow CJ to be in the care of the Respondent unless he is actually on the days off portion of his own work rotation. The amount of time CJ actually spends in the care of third-party care-givers is best evidenced by the fact that the Respondent had the care of his daughter approximately 50% of the time, all of the time the Applicant was at work, during the year that he was on sick leave followed by modified duties. [ 58 ] On the evidence before me, it is clear that the Applicant and CJ have a very close relationship and that the Applicant is devoted to her child.

During her evidence, the Applicant stated that “she is my whole world” and that she arranges to spend as much time as possible with CJ when she is not working. According to the Applicant, she and CJ are “very closely bonded”. In her affidavit, she

deposes: When I am not on my six-day rotation, we spent almost all of our time together. We are avid outdoors people and spent our free time camping, fishing, hiking, kayaking and quading. I bought CJ a horse last summer and have ben teaching her everything about having a horse since then. When I am on my six-day work rotation, CJ struggles to be away from me, but we talk on the phone at least once a day, and usually more.

We have always been a source of mutual support for one another, especially in times of loneliness and isolation. [ 59 ] In her evidence she similarly stated: We have a very close bonded relationship. She...we speak every day on the phone. We text often and she comes home on my short change. She is...we are together – I don’t – on days off I don’t go out. We don’t have sitters. She is with me full-time on my days off. We go on trips, we go on road trips, we go on holidays, we go do activities, we are always together.

Everything I plan for on my days off is stuff that she enjoys or we both enjoy together or anything that is mother-daughter friendly or whatever. That’s how I run my life. Everything is for my daughter. [ 60 ] The Applicant claims that she is “clearly more bonded to CJ than the Defendant” in her affidavit sworn November 19, 2019.

In the same affidavit, the Applicant states: “[T]he Defendant chose to leave me and CJ a number of years ago and as result we now wish to move on.” [ 61 ] The Applicant offers very little information about CJ’s peer relationships, her involvement in extra-curricular activities or, as more fully discussed below, her relationship with her father and his new family. While the Applicant acknowledges that CJ makes friends easily, she provided no details of CJ’s connections to children her own age.

Likewise, the Applicant provided very little information regarding the relationship between CJ and her new partner, Rocky Dempsey. [ 62 ] I have no doubt that the Applicant is a devoted mother who has served as a strong advocate for her child in addressing the health and learning challenges faced by CJ in her life. I accept without reservation that Applicant’s assertions that she has a very close bond with her daughter.

The concern, however, is that the Applicant’s very close connection to the child has been at the possible detriment of the child’s other relationships, notably her father, her sister, friends her own age, as well as her involvement in extra- curricular activities. In seeking to maximize her own time with CJ, the Applicant may have unintentionally limited CJ’s ability to form other relationships that are critical to her growth and development. The Applicant’s admittedly demanding work

schedule has also impacted CJ’s ability to participate in extra-curricular activities in light of the fact CJ spends a significant amount of time with a third- party caregiver while her mother is at work. [ 63 ] The Applicant suggests that the high cost of living in Fort McMurray, her overall decrease in income over the past few years, and the Respondent’s alleged unwillingness to share in the cost of extra-curricular activities, prevents her from providing these types of activities for CJ.

I accept the Applicant’s evidence that, relatively speaking, her income has recently decreased, and that the cost of living in Fort McMurray is high. However, I note that she was recently able to purchase a horse for CJ and is able to cover the on-going costs of boarding the horse.

I also note that the Applicant continues to expend significant amounts of money each month to cover the cost of third-party caregivers for CJ rather than allow CJ to spend more time in the care of her father and Susan. [ 64 ] As described in some detail below, the strained relationship between the Applicant and the Respondent has certainly had an unfortunate impact on their ability to work together in the best interests of CJ. These difficulties extend to their willingness to work together in supporting CJ’s participation in extra-curricular activities that span the time that CJ spends with both of her parents.

It seems clear that the conflict between the parents has contributed to a situation where CJ is not able to pursue these types of activities to the extent that would otherwise be the case. [ 65 ] While I accept that cost and parental conflict are factors in CJ’s limited access to extracurricular activities, I am satisfied that the primary reason lies in the Applicant’s desire to maximize her own time with her child, combined with the Applicant’s very demanding work schedule.

b) The existing access arrangement and the relationship between the child and the access parent [ 66 ] On the evidence before me, both the viva voce evidence, as well as the affidavit material on file, it seems clear that the parties have struggled in working together to share parenting responsibilities for CJ. Communication has been a major obstacle for them both. [ 67 ] The existing access arrangement has proven difficult for the parties to manage. The respective work schedules of the parties have been a complicating factor in determining the Respondent’s access from the date of separation.

The Applicant claims that the Respondent has rarely sought additional parenting time, often at the last minute, refused additional time when offered, and not provided his work schedules in a timely fashion so as to permit advance planning of access times. Further, the Applicant contends that the Respondent does not maximize his contact with CJ as he often works overtime and leave CJ in the care of others, notably his partner, Susan.

Finally, the Applicant says that the Respondent refuses to work with her reasonably. [ 68 ] The Respondent, on the other hand, claims that the Applicant has rarely offered any additional parenting time and treats the six-day minimum set forth in the Phillips order as a ceiling not to be exceeded. In his affidavit sworn January 3, 2019, the Respondent sets out his calculation of the actual access he obtained during the period July and December 2018, immediately after having spent a year of 50-50 parenting.

In July, he had 1.4 days; 13.3 days in August; 5.6 days in September, 2.1 days in October, 4.5 days in November and 1.5 days in December. The Applicant does not dispute this evidence, the core of which tends to confirm the Respondent’s concerns regarding limited access to his daughter. [ 69 ] Further, the Respondent maintains that the Applicant prefers to rely on babysitters when she is working rather than allowing CJ to send time with her sister Cassandra and the Respondent’s partner. Finally, the Respondent expresses his frustration that the

Applicant was unwilling to continue the 50-50 shared parenting regime that the parties had in place for a year while he was on sick leave and the reduced duties. In the face of the Applicant’s unwillingness to continue the 50-50 parenting arrangement, the Respondent filed his June 19, 2018 application to continue the parenting regime set out in the Feehan order. [ 70 ] The Respondent points to the 12-month period when he was off work or on light duties when the Applicant refused to give more than the minimum amount of required access.

Despite the evident success of the 50-50 parenting arrangement, the Applicant refused to extend it or to increase his parenting time at all stating that she viewed his application as “an attempt to disregard the parenting arrangement in place in the Phillips order and the Divorce judgment”. [ 71 ] Notwithstanding the parties’ on-going high conflict, and the obvious gulf in the parties perception of the situation, I am satisfied that the Respondent has consistently sought additional access time with his daughter over the course of the past several years.

From my review of the court file relating to this matter, the Respondent has consistently expressed a desire to increase his involvement in CJ’s life and his frustration with the obstacles created by the Applicant to further greater access. I find that the various court applications that he has initiated over the years all speak to his on-going desire to play an active and significant role in the life of his daughter. [ 72 ] I am satisfied that the Respondent has a close relationship with CJ.

This is an important relationship for CJ, a relationship that extends to her new sibling, Cassandra, as well as to her father’s partner, Susan, and the members of Susan’ extended family. I am also satisfied that the Respondent has consistently sought to be an actively involved presence in CJ’s life even in the face of the very high continuing conflict with the Applicant. [ 73 ] The Applicant concedes that CJ loves her father very much.

The Applicant acknowledges that the Respondent and CJ speak on the telephone or via Facetime on a regular basis. [ 74 ] The Respondent was questioned by the Court regarding CJ’s relationship with his partner, Susan. He responded as follows: Um, it’s good. It’s ah...they do crafts together. They like to watch the same shows together. They like the Harry Potter stuff. Ah, yes, there’s been a few little problems here and there with discipline. I think, the...

I believe the incident that was referred to was one night when CJ was making some noise and I was kind of part of it where we woke up Cassandra and she was crying and screaming and Susan had been trying for hours to get her down and she was a little frustrated and did yell and that did upset CJ.

And um, like any family, there’s going to be those instances, but for the most part, they really seem to enjoy each other. [ 75 ] The Applicant also reports that CJ has stated that she is uncomfortable being in the Respondent’s home for extended periods of time and has declined to go on vacations with the Respondent and his family. No details or specifics are, however, provided. Likewise, there is no confirmation of this in any of the Respondent’s evidence.

The Applicant also relates what are, in my view, minor incidents that have occurred while CJ has been in the care of his father, all seemingly related to CJ’s interactions with Susan. Otherwise, the Respondent describes a happy family environment in which CJ is very much a part. [ 76 ] The relationship between the Applicant and the Respondent’s new partner is, at least from the Applicant’s perspective, strained.

In her affidavit sworn November 13, 2019, she states at paragraph 16: In reply to paragraph 18, the Defendant continues to work a shift schedule, which includes night shifts, and it is my understanding that Susan also works. The Defendant would require childcare for CJ as well, as it is my understanding that he currently uses childcare for his other child. It has also come to my attention that Susan plans to join the RCMP. Susan would then be unavailable to care for CJ when she attends RCMP training in Regina or is posted elsewhere.

Even if Susan were available, I am not comfortable co-parenting with her as she regularly disparages me. I do not even have a phone number for Susan. I do not want CJ parented by Susan. [ 77 ] The Applicant offers no evidence to substantiate her claim that she is regularly disparaged by Susan. She makes a similar claim relative to the Respondent. I accept the Respondent’s denial that he speaks negatively about the Applicant in public. [ 78 ] I am satisfied that the Applicant has never made the Respondent’s access to CJ a priority.

Rather, she has, at best, met the bare minimum requirements set out in the Phillips order and given priority to maximizing her own time with CJ. The Applicant testified that her regular method for determining the Respondent’s access involves a process that ensures that CJ is with her on all of those days. She then examines the Respondent’s work

schedule to determine if he is on days off while the Applicant is working, and allocates parenting time to him accordingly. In short, the Applicant maximizes her time with CJ and only permits the Respondent access after ensuring that CJ is with her on all of her days off.

If both the Applicant and the Respondent are working at the same time, the Applicant arranges for external child care and does not permit CJ to be in the care of the Respondent’s partner. [ 79 ] In P.O.T ., the Court of Appeal referred to what it described as “parental misconduct that might affect the best interests of the children, such as attempts to limit the parental rights of the other”: at para 9. I hesitate to characterize the Applicant’s actions as actual misconduct, but am concerned that the impact of her overall approach to the Respondent’s access to CJ has an adverse effect on his parental rights.

The Applicant’s actions have also negatively limited CJ’s opportunities to develop a close and loving relationship with her father and his new family, particularly her new sibling. [ 80 ] The Applicant contends that the overall quality of the Respondent’s time with CJ will be enhanced if she is permitted to relocate to Oakville with CJ. She maintains that the quality will be improved on account of the fact that CJ will not be in school or involved in other activities while spending time with her father.

At the same time, she acknowledges that the overall quantity of the time that he gets to spend with CJ will be significantly reduced. Her proposed access plan is the same as the current access arrangement, save for the fact that the minimum of six access days per month will obviously not continue.

I would note that the holiday time that the Applicant proposes is the same holiday time that the Respondent enjoys while CJ continues to reside in Fort McMurray. [ 81 ] The Applicant repeatedly expressed the view that she would be flexible in terms of permitting the Respondent to spend additional time with CJ, and that they would “work it out” when his work

schedule and holiday plans permitted him to come to Manitoba to see his daughter. Given the lack of flexibility that the Applicant has demonstrated since the date of separation, I am highly skeptical about her expressed willingness to accommodate the Respondent when her actions to date strongly suggest otherwise. I would simply

add that I find the Applicant’s proposed access plan to be less than generous and raises concerns about her commitment to facilitating the Respondent’s access if she is permitted to take CJ to Manitoba. [ 82 ] I attach some significance to the fact that CJ now has a sibling from whom she would be separated if permitted to relocate to Manitoba. I accept the Respondent’s evidence that the girls have a close relationship despite the age difference and that they enjoy each other’s company. According to the Respondent, CJ plays with Cassandra and reads stories to her. They also watch television programs together.

Cassandra gets upset when CJ is not around. This is a very important relationship for CJ and one that should be nurtured and encouraged. [ 83 ] The Respondent responded to a question from the court regarding the relationship between CJ and Cassandra as follows: Mr. Tremblay: Well, Cassandra is 2 ½, she is just starting to verbalize more now. They seem to really enjoy each other’s company and playing. We just went on holiday travelling around looking at different museums ah, she likes to try The Court: Sorry, sorry, we just went on holiday travelling around and... Mr. Tremblay: Alberta and with the girls...

The Court: Yes Mr. Tremblay ...and CJ enjoys her time with her sister. The Court: sorry, did you say “and visiting museums”? Mr. Tremblay: Museums, yes The Court: Is that what I heard you say? Mr. Tremblay: Yes, museums, yeah, The Court: OK Mr. Tremblay Yes, visiting museums, say Drumheller. The Court: Yes. OK. Thank you. Mr. Tremblay: ...and with the Covid, there’s are a lot of restrictions and hand washing what not and both girls are really good about wearing their masks and helping each other. And CJ would help carry her sister around and show her the different things.

She seems to enjoy reading her sister stories. It’s good practice for CJ, reading. Like she reads her sister her basic books, but I mean any reading is great practice for CJ. Yeah, so she’ll read her books to her sister now. She’ll play with her and watch some of her shows with her. And go out to the park. Her younger sister gets upset when CJ is not around for dinner like if CJ is with us, say her younger sister will ...will run and go and ask CJ to come for supper, if it’s supper or breakfast, whatever meal it is..

Yeah, both girls really seem to enjoy each other. [ 84 ] The Applicant testified that she had never met Cassandra and knows very little about CJ’s relationship with her sister. She testified as follows: Mr. Vinni: Do you know much about the relationship your daughter CJ has with her sister Cassandra? Ms. Nicol No, CJ doesn’t talk much about what her time at his house. I only ask if she...if it was OK, if she enjoyed it and she just says yes. She doesn’t speak much. Mr. Vinni: Have you ever met Cassandra? Ms. Nicol: Nope Mr. Vinni: You’re not really that interested in knowing Cassandra. Ms. Nicol: Mr.

Trembly has never introduced her. He hasn’t... I’ve never even really even been introduced to his partner Susan, which is fine, that’s his other family and it is what it is and I accept it and... Mr. Vinni: OK. So you have never asked to meet Cassandra. Ms. Nicol: Nope, no. Mr. Vinni: Do you think there might be any reason to feel that CJ might miss seeing Cassandra if she moved to Manitoba? Ms. Nicol: She may. [ 85 ] I am troubled by the Applicants seeming indifference to the fact that CJ now has a sibling. In my view, this is a very significant, life-long relationship for CJ.

It would clearly be in CJ’s best interest if both parents actively supported and encouraged this relationship. Whatever personal reservations or misgivings the Applicant may have about the Respondent’s new life, her obligation as a parent is to actively support and encourage CJ to cultivate a loving and supportive relationship with her father, his new partner and, most significantly, her new sibling.

[86] There is every reason to believe that the Applicant’s indifference to Cassandra will continue if she is permitted to relocatewith CJ to Manitoba. In my view, this would be contrary to CJ’s best interests. [87] I am also concerned that the Applicant seems to know very little about the time that CJ spends with her father and his family.In this regard, the Applicant testified: “As far as I am aware, if I ask her if she has had a good time, she says it is OK”. Lately, now that she is a little bit older, seems to begoing on more and more play dates with other girls; had sleepovers with friends from school.

I don’t ask her too much....” [88] In my view, it is not difficult to understand why CJ says very little to the Applicant about that part of her life that involves herassociation with the Respondent, Susan and Cassandra. As is commonly the case in high conflict families, children are often caught inthe middle of the conflict. As such, they sense their parents’ attitudes and feelings towards the other parent and adjust their behavioraccordingly.

If CJ does not speak openly and freely about her experiences with her father and his family, it may well be because sheintuitively knows that her Mother does not want to hear about it. In the result, CJ is driven by circumstances to compartmentalize herlife. Not only is this unhealthy for CJ, but also means that both parents miss the opportunity to be involved in their child’s whole life. [89] Counsel have referred me to a series of decisions that have considered the potential separation of siblings, including step-siblings, in both child mobility and parenting cases.

In McAlpine v Leason, 2016, ABCA 153, the Court noted (at para 14) that “[T]hisCourt has noted the importance of the sibling relationship and the need to consider it in assessing the best interests of the child on amobility application: MacPhail at para 33.” In McPhail v Karasek, 2006 ABCA 238, the Court of Appeal simply noted in this regardthat “[T]he trial judge, therefore, should have weighted the effect of separating the two girls in assessing Venture’s best interests”: atpara 33. [90] In N.M. v C.K., 2012 ABQB, the Court considered a situation involving the potential separation of two half-sisters, one ofwhom was five years older than the other.

The Court held at paras 81-83: There is also the consideration of the contact and bonding of the child with her baby half- sister. An additional factor which may beapplicable in the circumstances is the separation of siblings. There is some authority supporting the principle of non-separation ofsiblings, where emphasis is placed on the family unit and the bond created between children: see, e.g. Langtry v Langtry (1997), (BC CA), 27 RFL (4th) 340, White v White (1994), (NB KB), 151 NBR (2d) 10 (QB); Taylor v Taylor(1987), (NB KB), 83 NBR (2d) 145 (QB).

In Jones v Jones (1994), (SK KB), 122 Sask R 114 (QB), the court determined that while keeping siblings together isan important consideration, it is not determinative of the issue of custody. This is particularly so in cases where the children are not closein age. It does not appear that the proposition that children should not be separated has been elevated to a rule of law. It is desirable, if itcan be accomplished: Zinck v Zinck (1973), (NS CA), 6 NSR (2d) 419, 43 DLR (3d) 157 (CA).

While this custody award is not contingent on this factor alone, I do consider the bond between the child and her half sister to be animportant factor in this case, certainly given their young ages and that the child has been a significant part of her half sister’s life sinceshe was born in November 2011. [91] In Allen v Allen, 2000 ABQB 732, Rowbotham J (as she then was) similarly held that a relationship with a step sibling is“important and needs to be fostered”: at para 23. [92] In Hill v Hill, [2008] O.J.

No 4730, the court held “It is extremely rare for a court to separate children resulting in one childresiding with one parent and the other child residing with the other parent. There must be very compelling evidence to separate siblings”:at para 42.

Likewise in McIntyre v Veinot, 2016 NSSC 8, the court notes, at para 146, that “absent compelling reasons to do so, Courtsgenerally avoid separating siblings.” [93] In Zinck v Zinck, 1973 CarswellNS 30, (NSSCAD), the Court was asked to review a trial decision that resulted in theseparation of the two children of the marriage, with the 11-year old boy being placed in the care of his father, while three girls, aged 9, 7and 3 years, were placed in the care of their mother.

In dismissing the appeal, MaKeigan CJNS held, at para 10-11, as follows: The appellant contended that the learned trial Judge had disregarded a rule that children should not be separated from each other unless “absolutely necessary” (a phrase used in Bromley on Family Law, 3rd ed., p. 310). I do not think that this proposition should be elevated to a principle or rule of law.

It is undoubtedly desirable, if it can be accomplished,to keep children together, so that they may share the affection and support of each other and grow up with a sense of family solidarity.This, however, is only one factor of the many that must be balanced and considered in determining what is in the best interest of theindividual children respectively. [94] The decision in Jones v Jones, 1994 CarswellSask 45 (QB), was also a parenting case that did not involve a mobilityapplication.

In that instance, the court was concerned with a 15-year-old boy and his 9-year-old sister in circumstances in which the boyrefused to see their mother. In directing that the children be separated and placed in the primary care of different parents, the court stated: As a general rule, a court is reluctant to separate siblings, which is what I am being asked to do here. However, this is not a rule whichadmits of no exception. See Bowyer v Bowyer (1976), (SK KB), 27 RFL 131 (Sask QB). In the instant case, Selinaand her brother love each other, get along well, and enjoy each other’s company.

It would be desirable for them to be in the samehousehold. However, there is an age difference of 6-1/2 years, which is a significant period, particularly when one recalls that Selina isstill a child whereas Brian is now in his mid-teens. Their ongoing interests and activities, of necessity, are and will continue to bedifferent. Brian will be associating with boys and girls much older than Selina and they will be doing things in which Selina cannotparticipate. Were it to be otherwise, i.e., that Brian forgo other relationships to be with Selina, that would not be healthy for Brian.

So,while it is important that the two children maintain a close relationship and have it continue to grow and develop, this is possible even

though they are apart. They are not in the same situation as children who are of comparable age: at para 24. [95] The New Brunswick Court of Appeal expressed a similar view in A.F.G. v D.A.B., 2011 NBCA 100, a case that involved therequirement to consider more than one sibling relationship. [96] In Hejzlar v Mitchell-Hejzlar, 2011 BCC 230, the British Columbia Court of Appeal adopted a similar approach to thepotential separation of siblings. At para 49, the Court stated: As often noted, the principle of maximum contact with a parent yields to the overall best interests of the child. How are those to bedetermined?

In a well-functioning family, as this appears to be, those interests cannot be determined in isolation from other near andextended family members. It is, in the least, worth remembering, that a child’s connection to his siblings must be appropriately fostered,in the best interests of all the children affected by the order. So not only are the eyes upon the older generation, they are also upon thechild’s own generation.

Here the result of the order is either to separate the child from his siblings, or to separate the child’s siblingsfrom their father, who is employed in Edmonton supporting the entire family. [97] The Newfoundland Court of Appeal, as it then was, also addressed the issue of separating siblings in Cox v Harvey, 2000NFCA 42. In that instance, the parents had a 50-50 joint parenting arrangement in which their 3-1/2 year-old daughter resided with eachparent on alternating weeks. This arrangement continued until the mother moved to New Brunswick with her new partner.

Subsequent tothe conclusion of the trial, the mother gave birth to a second daughter. The father also had a new partner, a stay-at-home parent with twochildren from a prior relationship. The trial judge was aware of the pregnancy when he awarded primary care to the father on the basis ofthe factors outlined in Gordon v Goertz, emphasizing the importance of avoiding the separation of siblings and the benefits of a stay-at-home mother.

In upholding the trial decision, the Court of Appeal held (at para 8-9): The trial judge considered Rebecca’s ties to persons other than her parents, including the factor of the birth of her half sister. He notedparticularly the submissions of and the cases cited by counsel for the appellant. However, as he correctly observed, in the cases cited bythe appellant the siblings were older and had a relationship with each other before their parents separated. This is in sharp contrast toRebecca and the then unborn Alexandra.

He added: This is quite different from separating siblings who have lived together in a household. In my view, one could just as easily justify notseparating Ms. O’Brien’s two children from Rebecca because they have become quite strongly attached. They will also, if all goes asplanned by Mr. Harvey and Ms. O’Brien, become stepsibling of Rebecca. In short, one should not blindly adhere to the principle of not separating siblings enunciated and followed in Newman and the otherNewfoundland decision cited. Each decision must be tailored to the facts of each case and, I might add, common sense as well.

I thus reject the application of the principle that siblings should not be separated because of the particular facts of this case. Here, we aredealing with Rebecca’s separation from a yet unborn child with whom she presently has no reasonably demonstrated attachment. This iscoupled with the fact that more anxiety may be brought on Rebecca by separating her from Sara and Scott O’Brien, children sointimately close to her that she refers to them as her sister and brother. It is sometimes said that there is a principle that siblings should not be separated. In most cases this makes sense.

If a child must beseparated from one parent, separating him or her from siblings who may provide comfort in difficult times could compound the alreadydifficult situation. The idea is to maximize to the extent possible the inevitable disruption which comes to children whose parentsseparate. However, it should be made clear that there are numerous examples where children have been separated from their siblingsbecause it was held to be in their best interests to do so.

The separation of children, in itself, does not necessarily amount to an error oflaw or a breach of principle. (Zinck v Zinck (1973), (NS CA), 14 RFL 106 (NSCA); MacKenzie v MacKenzie (1987), (MB CA), 9 RFL (3d) 1 (Man CA). [98] At no time during the course of her evidence did the Applicant demonstrate any insight or understanding of the impact on CJof the loss of contact with either her Father or her new sister if she were to leave Fort McMurray and move to Manitoba.

Likewise, shemade no reference to the inevitable disruption to CJ of a move away from Fort McMurray, the only home she has ever known. [99] Based on the numerous authorities that have considered this issue, I am satisfied that there is no principle that dictates thatsiblings, including half-siblings, should never be separated.

As many of the cases suggest, this is just one factor that is to be taken intoconsideration in assessing the best interests of the child. [100] While the resulting separation of the siblings is not determinative of the issue before me, I place significant weight on theimportance of keeping these two siblings together. Siblings are the only life-long relationship that most people ever have. As such, it is avery significant relationship that should be supported and nurtured.

All of the authorities that have been provided to me underscore theimportance of ensuring that siblings have the opportunity to enjoy the support and affection of each other. [101] In this instance, I take into consideration that these two siblings are both girls, unlike the situation in Jones and Zinck, butsimilar to the circumstances in McPhail and also N.M. I also take into consideration that there is a 7-year age difference between the twogirls in this instance, as well as the fact that CJ has been a part of Cassandra’s entire life. On the evidence before me, there is a closebond between the sisters.

In my view, CJ’s relocation to Manitoba would have a significant negative impact on this evolving andimportant relationship. The Desirability of Maximizing Contact between the Child andBoth Parents [102] It is, of course, important that CJ have maximum contact with both parents. In Gordon, McLachlin J (as she then was) described

the “maximum contact” principle in the following terms at para 24: The “maximum contact” principle, as it has been called is mandatory, but not absolute. The Act only obliges the judge to respect it to theextent that such contact is consistent with the child’s best interests; if other factors show that it would not be in the child’s best interests,the court can and should restrict contact: Young v Young, (SCC), [1993] 4 SCR 3, at pp. 117-18. [103] One of the great challenges of mobility applications is that important family law principles can draw the court in differentdirections.

While the “maximum contact” principle would suggest that preserving the Respondent’s existing parenting time with CJshould be accorded great significance, the “best interests” principle may well require that maximum contact must take a back seat to theoverall well-being of the child. As McLachlin J underscored in Gordon, “best interest” must prevail in these kinds of cases. The Views of the child [104] Given CJ’s young age, this is not an important factor to be considered in this case.

I do, however, note that the Applicant relatesin her affidavit that CJ has told her that she wants to continue to live with her mother and “has explicitly said that she does not want tolive with the Defendant [Respondent].” The Applicant also relates that CJ was excited to learn that the Applicant would no longer berequired to do shift work if they were to relocate to Manitoba. [105] The Applicant’s evidence in this regard reveals that she has clearly discussed a possible move to Manitoba with CJ. I amconcerned that the proposed move has seemingly been actively discussed with a child not yet ten years of age.

In my view, involving achild in this discussion was inappropriate. It places this child in the middle of her parent’s conflict and, in essence, asks her in suchcircumstances to “take a side” in the matter. Moreover, as previously discussed, the expression of the child’s point of view in suchcircumstances may not be accurate. Rather, it may simply represent the child’s attempt to tell the parent what the child has come tobelieve the parent wants to hear. This doubtless creates great stress for the child and is unhealthy.

For all of these reasons, I attach little,if any significance to the Applicant’s evidence regarding CJ’s views. The Custodial Parent’s Reason for Moving [106] In accordance with the decision in Gordon, this is only a factor to the extent that it may relate to the ability of the relocatingparent to meet the needs of the child. I am satisfied that this factor does not apply in this instance. Disruption to the Child of a Change of Custody [107] As outlined above, CJ has been in the primary care of the Applicant since birth. I accept that a change in custody at this point inher life would be highly disruptive.

At the same time, I am of the view that separating CJ from her father and his family, particularly CJ’ssister, Cassandra, would also be disruptive. Unfortunately, regardless of the outcome of this proceeding, CJ is going to be faced withsignificant changes in her life. Disruption to the Child Consequent on Removal from Family,Schools, and the Community [108] CJ was born in Manitoba, but moved to Fort McMurray very shortly after her birth. She has spent her entire life living in thiscommunity.

On the evidence before me, she is well-established in her school and group of friends. [109] As set out earlier in these reasons, CJ has some special needs in terms of learning and medical issues. These needs are currentlybeing met in Fort McMurray and through medical specialists in Edmonton. The Applicant acknowledges that CJ “is doing really wellright now” and has established routines with health care providers in Edmonton, including a pediatric ophthalmologist. [110] The Applicant’s plan for CJ does not include any details in terms of health or dental care in Manitoba.

Oakville is a very smallcommunity that does not have the services or resources of Fort McMurray. The Applicant will necessarily be reliant on services that arepotentially available in Winnipeg. In her evidence, the Applicant refers to the Manitoba Health Sciences Centre in Winnipeg, but offersno details in terms of specific resources that are available to take the place of the current members of CJ’s health team.

In particular, noarrangements have been made for the further eye surgery that CJ will require in the future. [111] On the education front, the Applicant has made some inquiries about the local school in Oakville. She also cites the availabilityof other support services, including Kumon and Sylvan Learning Centres, both of which are available to CJ in Fort McMurray. There isno evidence before me that such resources have been accessed up to now. [112] The Applicant is very critical of the education that is available in Fort McMurray, citing Ecole St. Paul’s School’s alleged delayin diagnosing CJ’s dyslexia.

She also suggests that the schools in Fort McMurray are not able to retain their best teachers on account ofthe current economic situation. The Applicant maintains that her experiences with the Fort McMurray schools have not been positive andthat she has concerns about their quality. [113] The Respondent challenges this characterization of the education system in Alberta and relies on email exchanges with variousteachers that outline their difficulties in dealing with the Applicant while the teachers were attempting to assist CJ with her learningchallenges.

The Respondent also points to the fact that the Applicant unilaterally changed CJ’s school after Grade 1 following thesedifficulties. By way of contrast, the Respondent refers to his own efforts to participate in CJ’s education, partly as an RCMP liaison to

the school. [114] The Applicant’s proposed move to Oakville comes with uncertainties potentially impacting on CJ’s future and well-being.Some of these uncertainties arise naturally from a planned relocation to a new community and the Applicant is certainly not to be faultedfor those uncertainties which lie beyond her control. However, this lack of certainty is a factor in my assessment of CJ’s best interests.

Ina mobility case where the future well-being of a child or children is at stake, there is a need for the relocating parent to provide as muchconcrete information as reasonably possible under the circumstances. In my view, some of that critical information is missing in thisinstance. [115] It seems likely that the Applicant will have difficulty selling her home in Fort McMurray given the current economic conditionsand the continuing impact of the global health pandemic.

While citing the lower cost of living in Manitoba, the Applicant makes nomention of the fact that wages are also generally lower in Manitoba than in Fort McMurray. As previously indicated, the Applicant hasno firm employment lined up in Manitoba. While she has made some inquiries in this regard, the impact of the Covid-19 pandemic doesnot appear to have been taken into account in this regard. I take into consideration that the Applicant’s plan is to seek out employmentthat does not involve shift work.

While there is obviously no guarantee that the Applicant will find such employment, I accept that this isher intention and that such a plan, if realized, would result in increased contact with CJ. [116] If the Applicant is able to find employment, she offers no details regarding any child care arrangements that will be requiredwhen CJ is not in school. Given their health status, it seems unlikely that either of the Applicant’s parents will be in a position to providethis care to CJ.

The Applicant also provides no details regarding the anticipated role of Rocky Dempsey in this scenario, other than thefact that he is planning to relocate to Manitoba as well. [117] Further, the declining health of the Applicant’s parents, one of the primary reasons prompting the move to Oakville, willdoubtless require a great deal of the Applicant’s attention when she relocates to Oakville. The Applicant maintains that she does notintend to become the primary caregiver to her parents.

Given her father’s precarious health, combined with her mother’s longstandingdependence on the Applicant’s father, it seems highly likely that the Applicant will be required to take on a very active role in supportingher aging and ailing parents irrespective of her stated intentions.

The likelihood of such a scenario unfolding seems enhanced by the factthat her parents are resistant to bring third-party caregivers into their home, as well as the lack of assisted living facilities in thecommunity. [118] The Applicant’s care-giving responsibilities relative to her aging parents will doubtless place limitations on her freedom ofmovement, both in terms of time and place. This will have an impact on the time that she is able to devote to CJ. None of this is intendedto be critical of the Applicant or her devotion to her extended family.

However, it does reflect the reality of aging parents and thedemands created on family members in providing for their ever increasing care. [119] CJ is doing well in her current environment. A move to a completely new setting, a place where she has only ever visited forholiday purposes, will disrupt all of the supports that have been established for her in Fort McMurray. The Views of the Applicant [120] In Gordon, the Court referred to the importance to be attached to the view of the custodial parent in mobility cases.

At para 48,McLachlin J held: While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the childand is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the utmost seriousconsideration.

The decision of the custodial parent to live and work where he or she chooses is entitled to respect, barring an impropermotive reflecting adversely on the custodial parent’s parenting ability. [121] Of note, McLachlin J also found that “[T]he best interest must be found within the practical context of the reality of the parents’lives and circumstances, one aspect of which may involve relocation”: at para 46.

She also stated that: The judge will normally place great weight on the views of the custodial parent, who may be expected to have the most intimate andperceptive knowledge of what is in the child’s interest.

The judge’s ultimate task, however, is to determine where, in light of the materialchange [not the instant situation], the best interests of the child lie. [122] The Applicant relies on the decision of the Ontario Court of Appeal in Bjornson v Creighton, (ON CA), 62OR (3d) 236, a case in which the Court of Appeal reversed the trial judge’s decision refusing the mother’s request to return to Albertawith her five-year old child.

While I am of the view that the facts in Bjornson are readily distinguishable from those in the within matter,the case does underscore the need to properly balance the so-called “maximum contact” principle with a proper consideration of the“best interests” principle. The decision also reminds trial judges of the importance of giving “serious regard” to the views of the primaryparent: at para 22.

Similarly, the decision re-enforces the notion that a “child’s best interests are better served and better achieved by awell-functioning and happy custodial parent, operating at her full potential”: at para 28. [123] In allowing the mother’s appeal, the Court of Appeal held (at para 30): With the greatest respect to the learned trial judge, he did not contemplate what improvement, if any, would result to the interests of thechild if the custodial parent were permitted to move to Alberta.

I agree with the statement of counsel for the mother, as expressed in herfactum, that the trial judge failed to “give due regard to the relationship between the quality of the custodial parent’s emotional,psychological, social and economic well-being and the quality of the child’s primary care-giving environment”. The learned trial judgefailed to appreciate the multi-faceted nature of the mother’s desire to return to Alberta with the child and the concomitant positive effectson the child’s best interests in being cared for by a well-functioning and happy custodial parent.

[ 124 ] The unique facts in Bjornson are important to a complete understanding of the Court of Appeal’s decision. In that instance, the mother was born and raised in Alberta and had worked for 12 years as a senior registered nurse specializing in cardiology and intensive care at the Foothills Hospital in Calgary. The mother moved to Ontario to be with the child’s father when she became pregnant. She obtained part-time employment in an intensive care unit, but lacked seniority. The relationship was short-lived and terminated approximately 3 years after the mother moved to Ontario.

She then brought an application for custody of the child and for permission to return to Alberta, where she had the support of a close family and circle of friends. Her high-paying, secure position at the Foothills Hospital was still available to her. [ 125 ] In this case, the Applicant has not confirmed, high-paying and secure employment waiting for her in Manitoba. Rather, she is giving up a high-paying and secure position with Suncor in Fort McMurray. Likewise, it is not clear that the Applicant has the same level of family and external support in Manitoba as was the case with the appellant in Bjornson .

I also note that the parties were not married in Bjornson and that the relationship was of a much shorter duration. Finally, the reasons in Bjornson make it abundantly clear that the mother in that instance would be better off in Alberta than in Ontario, thereby creating a better overall environment for the child. In my view, the evidence in this case does not lead to a similar conclusion. [ 126 ] It is clear from her evidence that the is highly motivated to move away from her current 6 days on/6 days off work

schedule and believes that more regular work hours will lead to an enhanced relationship with CJ. Subject to my findings relative to the unknown level of care that the Applicant will be required to provide to her ailing parents, I agree with her contention that eliminating shift work will allow her to spend more quality time with CJ.

I am very sympathetic to the Applicant’s desire to make a change in her current work schedule, but I would respectfully note that there is no evidence before me that she has made any attempt to make such a change with her current employer or in Fort McMurray, generally. [ 127 ] I am also sympathetic to the fact that the Applicant wishes to leave Fort McMurray for a variety of reasons. On the evidence before me, it is clear that the Applicant is unhappy living in Fort McMurray and believes that she has no support system in the community notwithstanding the fact that she has resided here for over 10 years.

The materials filed in support of her initial application to relocate to Bathurst, New Brunswick, as well as the current application to relocate to Oakville, Manitoba, reflect a strong desire to leave Fort McMurray and a belief in the existence of stronger support systems in both other locations.

However, I am also mindful that the Supreme Court in Gordon emphasized that the focus in mobility cases is on the best interests of the child, not the best interests or rights of the relocating parent. [ 128 ] Having had the opportunity to review the Applicant’s numerous affidavits and to have carefully observed her during her testimony in this proceeding, I noted a certain brittleness and fragility that seem to reflect a weariness rooted in the break-up of the marriage, the challenges of being a single parent, the heavy demands of her work schedule, and a sense of isolation within a community for which she clearly feels some ambivalence.

While I do not doubt her genuine commitment to her daughter, my overall impression is that she sees CJ as not only her daughter, but also her companion and friend. While this evolution of the relationship may be understandable on some levels under the circumstances, I am of the view that it reflects somewhat of a distortion in the Applicant’s perception and execution of her parental responsibilities.

More significantly, it represents a blurring of the Applicant’s perception of her own best interests and those of her daughter. [ 129 ] I would simply add that I am concerned that the Applicants “need” for CJ in her life has served to restrict and limit the other important relationships in CJ’s life, notably with her father and her sister, Cassandra.

I am also concerned that the Applicant’s desire to spend all of her free time with CJ will, inadvertently, have an adverse impact on the healthy development of CJ’s circle of friends who are her contemporaries, not to mention the other significant people in CJ’s life. Conclusion [ 130 ] This case illustrates many of the difficulties and challenges confronting trial judges in dealing with mobility applications. While I give very serious regard to the wishes of the Applicant to relocate to Manitoba, I am not satisfied that this is in the best interests of CJ in all of the circumstances.

I have serious concerns that the Applicant will not fulfill her obligation to facilitate the Respondent’s access to CJ if CJ is permitted to leave Fort McMurray and relocate to Manitoba with her mother. In my view, the unfortunate history of conflict between the parties and, most particularly, the Applicant’s on-going restriction of the Respondent’s access to CJ strongly point to a continuation of this dynamic. This is of significant concern given that CJ has a close relationship with a step-sibling that will, in my view, be adversely impacted if the Applicant is permitted to relocate CJ to Manitoba.

The potential separation of siblings is a very important consideration in this case. I am also concerned abou

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