JYL v TLL, 2021 ABQB 680

Court of Queen’s Bench of Alberta Citation: JYL v TLL, 2021 ABQB 680 Date: 20210826 Docket: 4803 191428 Registry: Edmonton Between: JYL Plaintiff - and - TLL Defendant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice L.M. Angotti _______________________________________________________ Introduction [ 1 ] JYL (“the mother”), seeks an order, permitting her to relocate the children of the marriage when she moves to Melfort, Saskatchewan and granting her primary day-to-day care with parenting time for the father.

TLL (“the father”), opposes the relocation and seeks primary parenting if the mother relocates; if she does not relocate, the father is agreeable to the mother continuing to have primary day-to-day care, with reasonable parenting time for him. There are two children of the marriage, HAL and CEL, currently aged 10 and 7 respectively.

[ 2 ] An oral hearing was held on June 1, 2021, following which the parties submitted written arguments. In making this decision, I have considered the affidavits, oral evidence and written submissions from each of the parties. [ 3 ] The only issues are relocation and the resulting parenting arrangements. No other issues arising in the divorce action were before the Court.

The Court must determine whether it is in the best interests of the children to relocate to Melfort with the mother or to remain in Leduc with the father, and the appropriate parenting arrangements that flow from that determination. [ 4 ] The application is granted. The children’s need for stability and their well-being is best served by remaining with their primary parent, who is best situated to address their schooling needs.

As a result, a parenting arrangement to maximize to the extent possible with the father is required, which arrangement will depend upon whether the children are learning online or in person. Background [ 5 ] The parties began cohabiting in August 2009 and were married September 1, 2012. HAL was born on July 27, 2011 and CEL was born on April 16, 2014. The parties separated on August 23, 2019.

Since separation, the mother and the children have resided in Sherwood Park and the father has resided in Leduc. [ 6 ] Shortly after separation, the parties orally agreed to a parenting schedule, where the children remained in the mother’s primary day to day care and the father had parenting time every weekend with additional holiday time. The parties obtained a without prejudice Interim Consent Order on October 9, 2020, pending the mother’s mobility application. Pursuant to the Interim Consent Order, the parents share decision making authority for the children.

The mother has primary parenting, while the father has parenting time every weekend from 5:00 pm Friday to 6:00 pm Sunday, every Wednesday from 5:30 pm to 7:30 pm, and additional parenting time as agreed upon by the parties. More recently, the parties have agreed that the mother will get one weekend a month. This remains the current parenting arrangement. [ 7 ] Both children are in school, engaged in online learning. Their last in-person attendance at school was in March 2020, when in person schooling was shut down as a result of the COVID-19 pandemic.

Online learning includes video learning and other interaction with teachers, but requires about two to three hours of parental support per school day. They remain in online learning as a result of HAL’s medical condition, which makes that child more vulnerable to COVID-19. As of the date of the hearing, vaccines were not approved for children under the age of 12 and the mother testified that the vaccine is important to any consideration of returning the children to in-person schooling. They have completed Grades 1 and 4, respectively.

HAL has a medical specialist at the University of Alberta, who she sees approximately every 6 months, and a family doctor in Edmonton. Prior to the pandemic, HAL would get sick about once every two months, for a couple of weeks at a time. While she would sometimes still go to school while ill in the past, that is unlikely to happen during or following the pandemic, given the position of schools that children are to stay at home when they are not feeling well.

Since the children have engaged in online learning, the mother has taken on the parental role for their schooling, with the father dealing with weekend homework on rare occasions. [ 8 ] Following the birth of the children, the mother was mostly a stay-at-home mother, other than fulltime work prior to CEL’s birth to qualify for maternity benefits. The father worked fulltime in financial support of the family. As a result, the mother took care of most of the responsibilities for the children, as well as care of the matrimonial home.

When he was home, the father would assist with the children at both the beginning and end of the day, as well as engage in planning of birthday parties and some vacations. He would also share recreational and other activities with the children.

Near the end of the marriage, the mother started her own business venture that occasionally required her to be away from home in the evenings or on weekends; during that time, the father would take care of the children. [ 9 ] Since separation, the mother has not worked, but is enrolled in online learning to become a medical transcriptionist, which training is expected to be completed by the end of October 2021. She testified that 95% of graduates are able to obtain a job in the field, with the training qualifying her to work in any province.

As a medical transcriptionist, she would be able to work entirely from home. [ 10 ] The father continues full time work in a steady job. He has flexibility with his work

schedule to help meet the needs of his children. If the children were in his care and continued online learning or stayed at home sick, he would rely extensively on his mother and his sisters, who live 45 minutes away, to assist him with schooling support or childcare. Burden of Proof [ 11 ] The Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp .) contains significant amendments with respect to the best interests of the child, parenting and relocation, which became effective March 1,

Section 16.93 establishes which party bears the burden of proof to establish the best interests of the children on a relocation application. There are three ways in which burden of proof may be allocated, based upon the terms “substantially equal” and “vast majority” as describing the level of parenting time. Neither of these terms are defined in the Divorce Act . [ 12 ] The mother submits the evidence supports that the best interests of the children are met if they relocate with their mother, regardless of who bears the burden of proof.

In this case, s 16.93(2) establishes the burden, as the parents are substantially complying with a Court order that provides the vast majority of parenting time to the mother. She also submits that the term “substantially equal” refers to a shared parenting arrangement where each party has at least 40% of the parenting time: Cote v Parsons , 2021 ONSC 3719 at para 52 ; McBennet v Danis , 2021 ONSC 3610 at para 275 . “Vast majority of the time” refers to a parenting arrangement with a primary parent who exercises parenting time in excess of 60% of the time.

In this case, the mother is the primary care giver with more than 60% parenting time. As the party opposing relocation, the father bears the burden of proving that relocation is not in the best interests of the child. The mother noted the Court’s discretion under s 16.94 to not apply the specific burdens of proof where the order is an interim

order, but submits the Court should decline to exercise that discretion in this case, as the mother has always had primary parenting of thechildren. [13] The father submits that “substantially equal” does not require a 50/50 split of parenting time.

Interpretation of similar languageunder the British Columbia Family Law Act has found “substantially equal” to apply in cases based on a 5 day/9 day, or 38.8%/61.2%,split of parenting time: M.M. v C.J., 2014 BCSC 6 at para 59. Conversely, the term “vast majority” of the time equates to 75% or more,as it implies a great or immense quantity.

This reflects the direction of the legislation, that although Canadians have freedom ofmovement, there is an accountability where relocation will significantly disrupt a relationship between a child and parent. [14] Both parties referenced the Ontario Labour Relations Board decision International Union of Operating Engineers, Local793 v Hermanns Contracting Limited, , which tribunal used the term “vast majority” in making their decision, butwhich was not a term used in the applicable legislation. What that case does indicate is that “vast” means a significant level or a greatquantity.

However, as the focus of the Ontario Labour Relations Board differs from the focus in parenting matters, the decision is oflimited use. [15] Under s 16.93(1), the burden of proof rests on the relocating parent when the children spend “substantially equal” time withboth parents. This would be satisfied by a shared parenting arrangement, which generally exists when each parent has 40% or moreparenting time. Under s 16.93(2), the burden of proof rests on the parent opposing relocation, where the children spend the “vastmajority” of parenting time with the parent proposing to relocate.

To give meaning to the qualifier “vast”, this must be something morethan just a simple majority of the time. A shared parenting arrangement may exist when there is not a simple majority, such as a 40/60split. However, the word “vast” suggests that there is a significant difference between the levels of parenting time. Both of these sectionscreate a presumption with respect to relocation. In the “substantially equal” time scenario, the parent proposing relocation bears theburden of rebutting a presumption that relocation is not in the best interests of the children.

In the “vast majority” time scenario, theparent who does not have the vast majority of the time bears the burden of rebutting a presumption that relocation is in the best interestsof the children. [16] Under s 16.93(3), both parties bear the burden “in any other case”. This indicates that there may be another level of parentingbetween “vast majority” and “substantially equal”, a level which does not fit within either of these terms. In those situations, nopresumption exists as to what is in the best interests of the child, that one or the other parent must rebut.

This is similar to when a Courtmust consider a parenting arrangement under s 16.1, where there is not a specific burden of proof on either parent. It is simply what is inthe best interests of the children. [17] Further, the amount of parenting time is not the only consideration. While there was a shared parenting arrangement in Waitev Waite, 2021 PESC 12, the Court determined that there was no order, award or agreement in place as contemplated in ss 16.93(1) or16.93(2) and applied the burden on both parties, as set out in s 16.93(3).

Also, s 16.94 provides the Court with discretion not to apply thespecific burdens of proof, where the current order is interim. [18] The lack of a particular burden of proof makes sense in these two scenarios. Where an order, award or agreement does notexist between the parties, the best interests of the children have likely not been the subject of a thoughtful consideration by the partiestogether or by the Court. The parenting arrangement in place is often arrived at as a temporary or short-term situation, pending a more in-depth consideration.

Similarly, the purpose of an interim order is to establish a temporary parenting arrangement until the parties are ableto come to an agreement as to the best interests of the child or the Court has a fulsome opportunity to determine the best interests of thechild upon the hearing of oral evidence: Hartley v Del Poro, 2010 ABCA 182 at para 9 and 13. [19] This family situation is not one of shared parenting. Under the parenting arrangement that has existed both prior to andfollowing the Interim Consent Order, the children spend approximately 30% of the time with the father.

Such a parenting arrangement isnot “substantially equal” and is not clearly a “vast majority” with one parent. [20] However, the parenting arrangement is pursuant to an Interim Consent Order, pending this determination of the mother’srelocation application. The mother first approached the father in late 2019 about relocating the children with her to Melfort, just three orfour months after separation. The father refused to agree to such relocation. After sometime, the mother suggested that she wouldrelocate without the children, so she could attend school, until the parties made a final determination on the move.

This proposal wasquickly withdrawn by the mother, who again wanted to relocate with the children. The parties were unable to reach an agreement and sothe divorce claim and relocation application were filed. The hearing in this matter was to proceed by desk application in the fall of 2020,but was then directed to an oral hearing in April 2021. The initial hearing date was adjourned for reasons that were not the fault of eitherparty and it was finally heard on June 1, 2021. There has never been a considered or in-depth assessment of the best interests of thechildren, nor an agreement by the parties.

As a result, I exercise my discretion to apply s 16.94, such that neither party bears a burden ofproof with respect to relocation and the Court’s decision will rest solely upon an assessment of the best interests of the children, based onthe enumerated factors in the Divorce Act. Best Interests of the Child [21] In decisions about relocation and parenting, the Court can only consider the best interests of the children and must giveprimary consideration to the children’s physical, emotional and psychological safety, security and well-being, as required by s 16 of theDivorce Act.

As well, the new Divorce Act sets out the various additional considerations when a parent makes an application to relocate achild. [22] The mother submits that a relocation of the children to Melfort is in the best interests of the children. Her return toSaskatchewan will provide more stability and financial support to become financially independent, as well as provide the ability to becloser to her terminally ill mother. She should remain the children’s primary parent, as has historically been the case, resulting in thechildren spending more time with her than anyone else.

While the children have a strong bond with the father, he does not have theability to be the primary parent, relies heavily upon others to provide care to the children during his parenting time, and exercise poor

judgment as a parent. No matter what the Court decides, the children will experience some disruption, but she submits it will be less disruption if they relocate with the mother, their primary caregiver, to a city she is familiar with as a result of growing up there. [ 23 ] The father submits that, since separation, the parties have established consistent contact with both parents to ensure the stability of the children. The evidence shows that the father was always an involved parent and he has the ability to meet the physical, educational, and medical needs of the children.

Any issues with the education are a result of the mother’s control over this aspect of the children’s lives, which has limited his ability to be involved. The father has taken the necessary and appropriate steps to address any concerns and establish appropriate routines for physical and medical needs. The children have a strong bond with both parents and the father’s extended family, but a lesser bond with the maternal extended family. He recognizes that the mother has historically been the primary parent, while he worked to financially support the family.

He has provided detailed plans for the children’s care if he is the primary parent, including plans for online schooling. Any issues with communication arise from the mother’s lack of willingness to communicate. The mother’s reasons for relocation are not supported, as it will not be financially advantageous and she has supports in Alberta, while she has not lived in Melfort since high school. He submits that the impact of relocation on the children will be significant.

It would drastically reduce their time with their father and negatively impact that relationship. [ 24 ] With respect to the factors set out in s 16(3) on the best interests of the children, the factors in s 16(3)(e), (j), and (

k) are not applicable in this case. With respect to the applicable factors, I find that both parents are good and loving parents, who meet their children’s needs. The mother expressed some concerns about the father not taking appropriate care of the children’s hygiene, failing to adhere to HAL’s regular inhaler medication schedule, showing limited interest in the children’s schooling, and failing to keep the children safe, either with respect to appropriate COVID precautions or while engaged in play with their cousins.

To the extent that this is based upon the children’s reports to the mother of their time with the father, I place little weight on them. They constitute hearsay and the children are not of an age or maturity level to express themselves in a manner that the Court would consider reliable. The mother admitted that she questions the children on how the father is parenting them. Such questioning can leave children prone to providing the answer they believe their parent wants to hear. The father testified that he has experienced some struggles in the transition to being a sole care provider during his parenting time.

He provided reasonable explanations for the situations that concerned the mother. Where those concerns involve bumps and bruises, they have happened in both parents’ care and are things that are normally expected of healthy, active children. I find that the father has provided good and loving care to the children, while meeting their hygiene, health, educational and safety needs, albeit with some adjustment period expected of a parent not used to handling certain routines.

The father also expressed concern over the mother following appropriate COVID precautions, for which the mother provided reasonable explanation. I find that the mother has continued to provide good and loving care to the children, meeting their various needs. [ 25 ] The mother also raised an incident where the father used the children to enter her home through a window, while she was in Saskatchewan, as he was looking for his speakers to dee-jay at an event (the “House Incident”). CEL advised the mother about the House Incident and the mother understood that the father then punished CEL for telling her mother.

The father stated that he took the hinges off the shed door, as the mother had told him she lost the keys. He also entered the house as described, because one of the children wanted to water and feed her gerbil. At the time, the father felt that his relationship with the mother was still of a nature that she would not be upset by this behaviour. His evidence is consistent and credible that he did not tell CEL to keep a secret about this from the mother and that he did not punish CEL for telling the mother.

While this incident was one of very poor judgement by the father, I find that it does not negatively impact on his ability to parent. [ 26 ] Another concern raised is an increase in urinary and fecal accidents by CEL, as well as CEL not advising her parents when these occur. Both parents share this concern, but both have seen improvement again over time. The mother alleged that this increase in accidents was directly related to the father punishing CEL for the House Incident. The mother has sought medical advice for this problem, both from a psychologist and her family doctor.

The only evidence she provided as to the medical caregivers’ reasons why the accidents are occurring was on cross-examination, when she stated that her family doctor said it was common for young girls to have urinary accidents. She also testified that the psychologist advised that it is a normal stage for children of CEL’s age to lie at times. The mother’s allegation of the cause of CEL’s issue is without foundation.

This concern does not impact upon the ability of either parent to care for the children. [ 27 ] Unfortunately, in this application, the mother engaged in the common strategy of nit-picking on small matters about the father’s parenting, in an effort to show him as an inappropriate parent. This strategy was addressed in CZ v RB , 2019 ABCA 445 at paras 30 and 32 : Parenting trials are difficult.

Far too frequently, parents spend disproportionate time and energy attempting to demonstrate why the other parent is deficient instead of focussing on the parenting arrangement that is in the best interests of the children. … … In reality, it is a rare case where the court determines a parent is unfit. In most cases, parents ably demonstrate their love for their children. In turn, children love their parents—faults, frailties and all. It is that simple.

If they are to thrive following divorce, they must be given permission to love both parents and cultivate relationships with each, in an environment free from conflict…. [ 28 ] Parents are not expected to be perfect; they are expected to be good caregivers and generally exercise good judgement. At most, the House Incident itself, not the alleged impact on CEL’s toilet issues, was an incident worth consideration. Even so, nothing in the evidence rises to the level of establishing that either parent would fail to meet that expectation.

Both of these parents clearly love their children and both of them would meet the expectation of a good parent. [ 29 ] The children have excellent and loving relationships with both of their parents, as well as their maternal grandparents and their paternal grandparents and extended families. Both parents have expressed a willingness to develop and maintain the children’s relationship with the other parent. Both parents also have a willingness and ability to care for and meet the needs of the children.

However, while the father is willing to take on primary care for the children, that is only if the mother does not remain with the children in Sherwood Park. In other words, the father is willing to provide primary care to keep his daughters close to him, but equally willing to allow the mother primary care if his daughters remain close to him. This determination does not take away from the father’s love and

care for his daughters or his ability to meet their needs. Nor is it a negative indicator of his parenting. However, it supports that it is inthe best interests of the children to remain in the primary care of the mother. [30] This is further supported in the current school situation. Both parents would prefer to have the children in school. However,until they are able to be vaccinated, neither parent is comfortable with HEL going to school due to her immune compromised status.

Theonline learning requires significant parental support of two to three hours per day and establishment of a routine, which the mother hasdone for the last year and a half of school. This history of care of the children supports the mother as the primary caregiver. [31] The parties have also demonstrated an ability to cooperate, although the mother appears to be less willing to communicate, asshe has not always shared in a fulsome manner information about the children’s school or medical appointments.

The mother expressedthat she simply feels the need to do the schooling or medical matters herself, because she always has and feels she can best handle it.While the father can take some proactive steps in obtaining the information, the mother should share such information regularly and in atimely manner with the father, such as both before and after a medical appointment. While the father may not have had significantinvolvement with such matters in the past, it is his right as a guardian to have this information and to participate in these matters.

Whilethe mother is better at handling these matters, as with the other routines of the children, the father can be an adept parent even if an initialadjustment period is required. As stated in Waite, supra at para 349: Matters of communication and cooperation between parents who are sharing the care of a child demand that each party show respect forthe other.

The needs and best interests of the child must be paramount. [32] It is the hope of the Court that the parents can engage in good communication with each other, for the children, withoutunnecessary criticism of the other’s parenting style and constructively addressing any legitimate concerns about the children’s care.

Thiswill not only show respect for the other parent, but ensure that the children’s best interests are always at the forefront and the childrencan be effectively cared for by both parents. [33] The Court also needs, by s 16(6), to give effect to the principle that a child should have as much time with each spouse as isconsistent with the best interests of the child. This does not require equal time or a shared parenting arrangement, which neither party hasproposed. Rather, it is as much time as possible given the circumstances, as that is in the best interests of the children.

Consideration ofthe additional factors with respect to relocation must now occur, to determine if the best interests of the children continue to supportprimary care with the mother in the circumstances of the mother’s relocation to Melfort.

Section 16.92 Relocation factors [34] The recent amendments to the Divorce Act have established additional factors that the Court must consider in a relocationapplication with respect to the best interests of the children. [35] In considering these factors, the Divorce Act also clearly provides that the Court cannot consider, if the children’s relocationwas prohibited, whether the mother would relocate without the children or not relocate, pursuant to s 16.92(2). The mother is entitled tomake her own decision on where she will reside.

Thus, while the father supports the continuation of the current parenting arrangementshould the status quo remain, the Court is not permitted to make its decision on the basis of the status quo. I must assume that, regardlessof my decision, the mother will relocate to Melfort and my decision on the best interest of the children and parenting rests upon thatassumption. The additional factors must be considered in the context of the mother moving to Melfort and the father remaining in Leduc,considering each of the situations where the children primarily reside with one or the other in those respective locations. a.

The reasons for the relocation [36] This factor is a significant shift from the previous law under Gordon v Goertz, (SCC), [1996] 2 S.C.R. 27,where consideration of the reasons for relocation was only done in the exceptional case of an impact upon that parent’s ability to care forthe child. [37] In the case of Cotes, supra, the reason for the proposed relocation by the father was to provide stability for the family and tobenefit his mental health, by moving to where his extended family supports lived, where he had found work, and away from his previousemployment that had caused significant harm to his mental health.

The Court determined that the father had not made best efforts to findalternate work in the children’s geographical region, which work would have permitted the shared parenting arrangement to continue.This was part of the consideration for refusing the father’s request to relocate the children to a community four hours away, along withthe disruption of the children from their community and the significant impact on their relationship with the mother. [38] In the case of Waite, supra, the mother’s reasons for relocation from Prince Edward Island to British Columbia weresignificantly better financial prospects and the necessary support system to help the mother regain her mental health, which was expectedto deteriorate further over the long term if she remained in PEI.

The Court accepted these reasons, given the significant and detailedevidence of both the mother’s medical prognoses depending on where she resided and her employment prospects. The Court concludedthat mental health of a parent is directly related to the best interests of the child, as is a parent’s employment and earning capacity. [39] The mother stated that the reason for the relocation was to support her transition from married life into one of self-sufficiency,by living rent free with her parents in Melfort and using them for childcare when needed.

The mother expressed that she can provide abetter life for her children in Melfort with an extended support network. Her support network in Sherwood Park consists of friends,whereas in Melfort she will have the support of her parents and she also has a sister who lives in or near Saskatoon. Saskatoon isapproximately 2 hours away from Melfort. The only extended family of the children in Alberta are from the father’s family. [40] The mother also deposed that she has little employment prospects in Alberta.

However, her current training regime willqualify her as a medical transcriptionist able to work anywhere in Canada and there is no evidence that she would have increased

economic opportunities in Saskatchewan. As a major urban centre, Edmonton and area is likely to offer greater job prospects than Melfort and area. When pressed on cross examination as to why Melfort when she could work from anywhere, she responded that her family is in Melfort and she still considers it home, even though she has not lived there since shortly after high school. Her education is also not a reason for the relocation, as she is taking online learning from a school in British Columbia, while living in Sherwood Park.

While such learning provides her with flexibility to continue primary parenting of the children, relocation is not necessary for or impacted by her training.

Therefore, I find that education and employment opportunities are not the true reasons for her to relocate, as she has found an occupation that will allow her to work anywhere, including Melfort. [ 41 ] The evidence establishes that a significant reason for the relocation is for the mother to be closer to her mother, who has been diagnosed with terminal cancer and may only have a few more years to live. [ 42 ] The relocation may assist the mother in becoming self sufficient, as she will be able to live with her parents rent free for a period of time.

The evidence establishes that the maternal grandmother’s illness has not impacted her ability to provide care to the children as she continues to be able to work at her job, although the situation is likely to change in the coming years. As well, the mother plans to move out of her parent’s residence once she is established in her work. The mother stated that the cost of living would be lower, but agreed on cross examination that she would be unlikely to find rent for the same or less than she is renting now. [ 43 ] The mother’s reasons for relocation are not related to the best interests of the children.

They are connected to her desire to be closer to her mother, who is terminally ill. The mother could work in Sherwood Park in her chosen field, without any loss of flexibility. Any financial support is intended to only be temporary and the cost of living has not been demonstrated to be lower. The reasons for the relocation are solely for the interests of the mother. b. The impact of the relocation on the child [ 44 ] The relocation will have a significant impact on the children regardless of whether they go to Saskatchewan or remain in Alberta.

As with any long-distance relocation, the move will have the impact of reducing the children’s time significantly with whichever parent they do not reside. Thus, the relocation will likely have a serious negative implication for the children’s relationship with one of their parents: Cote , supra at para 120 . [ 45 ] If the children move to Saskatchewan, it will have the positive impact of bringing the children closer and more frequently in contact with their maternal relatives.

The father has expressed a concern that the mother’s father will lose patience and become angry with the children, when they live with him for an extended period of time. While both the older adults and the children would have some adjustments to that living arrangement, I am satisfied that the living arrangement will not be detrimental to the children. The mother testified that both of her parents are willing and able to have the children and the mother reside with them. The mother will be available to deal with any issues arising from the living arrangement.

However, the children will also have less contact with their paternal relatives, with whom they have spent significant time and established strong relationships. Such relationships will not be completely lost, as they will be able to maintain some level of contact during their parenting time with the father. [ 46 ] If the children remain in Alberta, there is the positive impact on the children having the same or more opportunity to nurture their strong relationships with their paternal relatives.

They would still have the opportunity to engage with their maternal relatives, perhaps more than they do now, as their time with their mother would always be with or near those relatives. [ 47 ] In either case, the children will be removed from their current support network and circle of friends, having lived in Sherwood Park since 2016. They will need to create a new support network and establish new friendships, whether in Melfort or Leduc, so this impact is neutral. [ 48 ] In terms of their education, the pandemic has resulted in schools providing online schooling.

The children can undertake their online schooling from wherever they reside, be it Melfort or Leduc. However, relocation will still impact upon their education. If the children go to Melfort, they will continue to have their main parent support for online learning, the mother. If the children go to Leduc, the father plans to use support from his adult family members in Lacombe who have experience with home schooling. Despite the flexibility in his work, he must still work full time and will have a limited ability to provide the necessary support himself for the children with online learning.

As well, the support from his family in Lacombe would not be available every school day. Therefore, the children will have stronger support for online schooling if they are relocated to Melfort. [ 49 ] The children’s health must be considered, as they are both seeing specialists. HEL currently sees a respirologist at the University of Alberta for her medical condition and CAL was seeing a child psychologist until sessions became virtual only. The mother deposed that respirologists or child psychologists may be available in Prince Albert, Saskatoon or even Regina, and she is prepared to travel for such care.

However, her evidence on this was vague, which suggests that this issue has not been explored in detail and steps have not been taken to find alternate caregivers in Saskatchewan. While the mother suggested that medical care could occur remotely, she stopped taking CAL to a psychologist when in person sessions were no longer available. As well, it would likely be difficult for a respirologist to assist breathing and other functions remotely. Lack of appropriate medical care, that is available in Edmonton, would be a negative impact of relocating the children. 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 [ 50 ] Currently, pursuant to the Interim Consent Order, the parents share decision making. The mother has primary parenting time, with the father having parenting time every weekend (except one weekend per month) from Friday at 5 pm to Sunday at 6 pm and every Wednesday from 530 to 730 pm. A relocation to Melfort will significantly decrease the amount of parenting time the children spend with their father.

This would negatively impact their relationship with their father, which is a very good relationship. While the father was the

full-time wage earner of the family during the marriage and so had less involvement with the children, he was still significantly involved in the children’s lives and remains so. [ 51 ] However, since separation, the parties have agreed that the mother would have primary care of the children. The father has only sought primary care when the mother filed her mobility application.

While the father has been able to meet the needs of the children while in his care, the fact that the mother has provided primary care throughout the marriage and following the marriage has resulted in a stable parenting for the children over the last few years. The father already experienced a period of adjustment, in dealing with matters of hygiene and medication.

While he eventually established good practices, a change to being the primary care giver and the support and routines that are concomitant with that parenting status would result in a significant disruption to the children and thus a negative impact on their need for stability. The history of care for the children is important to the consideration of stability, including the psychological and emotional well-being of the children. 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 [ 52 ] The notice requirement under s 16.9 was not in place when the relocation application was made. Both parties agree there is no issue of notice. The mother has made the application prior to any relocation and is awaiting the Court’s decision before taking any steps to relocate.

While it is not necessary for a parent to delay their own relocation pending a court order, the mother’s approach of seeking permission from the Court in the absence of agreement from the other parent prior to relocating the children is the appropriate and desirable approach and is now required by the legislation. e. The existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside [ 53 ] There are no orders, awards, or agreements in place that impact upon the relocation application. f.

The reasonableness of the proposal 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 [ 54 ] Currently, the father sees the children every weekend on Friday from 5 pm to Sunday at 6 pm, as well as every Wednesday from 530 to 730. In an agreed departure from the Interim Consent Order, the mother has parenting time one weekend per month.

The Interim Consent Order does not address how the parties handle a holiday schedule, but there is evidence that the mother would take the children to Melfort in the summer for two to three weeks at a time, with the father in whole or in part, and that the children would spend significant parts of the summer in Lacombe with the father’s extended family. [ 55 ] The mother submits that her proposed parenting arrangement is reasonable, balanced, and detailed.

The mother has proposed that the father would have parenting time on a four-day weekend from Friday to Monday, once per month, with additional time if the mother is in Alberta or the father is in Melfort. While no particular times were proposed, in consideration of travel for the parties, this would likely be Friday 12 pm to Monday 12 pm, which effectively amounts to three full days of parenting with the father. The parties would alternate or share the major holidays and the father would have the children for four weeks in the summer. In addition, she proposes consistent electronic communication.

I find that the mother’s proposal for parenting time or contact in the circumstances is unreasonable. The father proposed a similar parenting arrangement, if the children were not relocated and remained primarily with him in Leduc. That proposal is also unreasonable. [ 56 ] The children currently enjoy approximately 25% to 30% of their time with their father. The mother’s proposal would reduce that amount to approximately 10% for one extended weekend per month, with seven or more hours of this time spent travelling in a vehicle.

While it is unavoidable that a move to Melfort will result in a significant impact upon the father’s parenting time during the school year, the mother’s proposal for a holiday

schedule does not account for the reduced time the father would have during the school year and is essentially what would be ordered if the parties lived within the same geographical area. [ 57 ] In addition, this proposed parenting

schedule removes the children from school for two days out of every month. While not a significant concern in the lower grades, as the children get older it may be more impactful. Neither party appears concerned with such time away from school, perhaps as they are prepared to work with the school to ensure it does not negatively impact the children’s education. [ 58 ] The mother has proposed that the meeting point for the exchange of the children be at a point approximately halfway between the parties. That plan considers driving and splits the burden of driving, in both time and resources, between the parents.

The parties have not considered the potential of the children flying from Saskatoon to Edmonton, which may be more costly, but safer in the winter and reduces the travel time. While COVID would certainly impact any decision to use flight as a transportation method, such travel is something the parties could also consider, sharing the cost equally. 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 [ 59 ] Both parties agreed that compliance was not an issue. Both parents have been compliant with the existing Interim Consent Order and are likely to be compliant with any order granted. Conclusion [ 60 ] As directed by s 16(2), the primary consideration is a child’s physical, emotional and psychological safety, security and well- being. There are three main aspects that arise in this situation, when considering whether to permit a relocation to Melfort.

A child’s physical, emotional, and psychological safety, security and well-being is significantly impacted by their schooling, their health, and the parent who is their primary caregiver. [ 61 ] The children’s educational needs while they are learning online would be impacted the most if the application is denied. The mother has already been providing for those needs for approximately one and a half school years.

The father, given the nature of his work, would have to rely on three other individuals, being his mother and two sisters, to help with his children while homeschooling, which individuals have their own family responsibilities and live 45 minutes away. Given the lack of vaccination approval for the children at this time and the continued impact of the COVID pandemic, it would be expected that online learning would continue for the foreseeable future.

Even if the children were placed in school, again there is the likelihood of a significant change to the structure and routines that they currently have, although it would be less impactful upon them. [ 62 ] In contrast, the children’s medical needs would be significantly impacted if the application is granted. HAL’s family physician and specialist who know her the best are in Edmonton. It is not feasible that a long-distance relationship with these individuals would be sustainable long term. CEL’s counselling sessions were stopped, because the mother felt they would not be effective if done virtually.

However, the mother did not provide any concrete plan or evidence of steps taken to find alternate caregivers close to Melfort, other than her belief that such caregivers could be found. [ 63 ] The Court is left to choose between these two significant areas of the children’s lives. As the education will impact the children on a daily basis and HAL’s medical condition has continued to be well monitored virtually during the pandemic, the impact of denying the application on the children’s education would be more significant than the impact of granting the application upon their health.

Thus, the consideration of the proposed relocation on the determination of the child’s best interests has not changed; it remains in the best interests of the children to have primary parenting time with the mother. The children would have to relocate either with their mother or to their father, both with significant impacts. Having the mother as the primary caregiver will continue to provide the children with significant stability in the inevitable relocation. [ 64 ] I order a final parenting order: 1. The mother will have primary parenting of the children.

She shall take all appropriate steps to ensure appropriate continued medical care for the children. 2. The mother may relocate the children to her residence in Melfort, Saskatchewan. Any future proposed relocation will require the agreement of the father or an order of the Court. The parents shall make arrangements to have this transition occur with a focus on the children’s best interests. Any such arrangements will include the father having the children for six full days immediately prior to their departure to Melfort. 3. The parents will continue to share joint decision-making authority for their children.

Whether or not the other parent has requested the information, the parents shall exchange information in a timely manner regarding the children's care, scheduled activities, educational and medical providers, and important milestones and appointments, medical and otherwise. Each parent is entitled to attend medical or school appointments or events or extracurricular activities.

Each parent shall be entitled to receive copies of all medical, dental, school and other reports related to the children and shall be entitled to consult with the children's teachers, caregivers, physicians, dentists and other healthcare providers concerning the children. Each parent shall be listed on all documents pertaining to the children. 4. While the children are in online learning, the father shall have parenting time from 12 noon on Saturday to 12 noon on the following Sunday, for a total of eight parenting days in a row, once every four weeks.

These exchange times are subject to change as a result of adverse driving conditions. The father shall be responsible for ensuring during this time that the children have the appropriate supports in place to support their online learning. The following holiday

schedule shall override the parenting time:

a) The parties shall equally split the Christmas holidays, with the father to have the portion of holidays covering Christmas Day on odd years and the mother to have that portion on even years.

b) The mother shall have spring break on even years. If there is an extended fall break, the father shall have the fall break on even years. The opposite shall occur on odd years.

c) The mother shall have the first two and the last two weeks of summer holidays. The father shall have the remainder of the summer holidays.

d) The father’s week in June shall coincide with Father’s Day and, if Father’s Day falls at the end of that week, the children shall be exchanged at 12 noon on the Monday after Father’s Day. 5. If the children return to in-person learning, the father shall have parenting time every school month, except December, from 4 pm on the school day prior to the weekend until 4 pm on the last day of that weekend. The weekend to be provided shall be the longest

weekend in the school

schedule for that month, whether by virtue of statutory holidays, teachers’ convention, PD days, or other reason. These exchange times are subject to change as a result of adverse driving conditions.

a) In odd years, the father shall have the children at 12 noon on the first day of Christmas holidays until 12 noon on the tenth day of Christmas holidays. On even years, the father shall have the children on the later of 12 noon Boxing Day or 12 noon on the fifth day of Christmas holidays until 12 noon on the last day of Christmas holidays.

b) The father shall have every spring break and, if it exists, fall break with the children. During the month of spring break or fall break, this will be in place of the long weekend parenting for that month.

c) The father shall have parenting time for 6 weeks of the summer vacation, at a time to be agreed upon by the parties.

d) The father’s weekend in June shall coincide with Father’s Day and, if that is not a long weekend, the children shall be exchanged at 12 noon on the Monday after Father’s Day. 6. The exchange of the children will occur at an agreed upon location approximately equal driving time from the parents’ residences. Each party will bear their own costs of such travel. Alternatively, if the parents agree, the children may fly between Saskatoon and Edmonton and each parent shall bear half the cost of flight travel for the children.

The father’s costs of such travel shall reduce the child support amounts that he is required to pay. 7. When one parent has parenting time, arrangements shall be made for reasonable and generous access by the other parent via phone calls and video conferencing, for a minimum of five times per week at a time that works with the children’s school

schedule and the other parent’s work schedule. In addition, the mother will facilitate phone calls and video conferencing with the father’s extended family on a regular basis, to assist the children in maintaining the strong relationships they have with their paternal relatives. 8. The father may have additional parenting time with the children in Melfort, Saskatchewan, should he choose to travel there providing said parenting time does not unreasonably interfere with the children's schooling and he provides the mother five days notice.

In the event that mother travels to the Edmonton area or Lacombe area, the mother shall bring the children and provide the father with five days notice of such travel and the father shall be granted reasonable and generous access during that trip. 9. The parties by agreement may alter this arrangement. [ 65 ] If the parties are unable to agree on costs, they may speak to costs by written submission within 30 days of this decision. Heard on the 1 st day of June, 2021. Dated at the City of Edmonton, Alberta this 26 th day of August, 2021. L.M. Angotti J.C.Q.B.A.

Appearances: Melissa Lefebvre Callioux Law for JYL Diane Ridley Ridley Law for TLL