LMS v CES, 2021 ABQB 708

Court of Queen’s Bench of Alberta Citation: LMS v CES, 2021 ABQB 708 Date: 20210903 Docket: 4803 179880 Registry: Edmonton Between: LMS Plaintiff - and - CES Defendant _______________________________________________________ Reasons for Judgment of the Honourable Justice G.R. Fraser _______________________________________________________ [ 1 ] The parties in this matter came before the court as a result of LMS’s proposed move to California. She seeks the court’s permission to move to California with the two children of the marriage.

CES is opposed to the children moving and is seeking to change the current parenting regime, such that the children will reside primarily with him. [ 2 ] The parties were married in 2004 and separated in 2007. There are two children of the marriage, born in 2006 and 2008. LMS has had the children for the majority of the parenting time since separation. The children usually spend alternate weekends with CES, as well as extended periods of time while on holidays. Initially, everyone resided in Red Deer. That changed in 2010, when LMS moved to Edmonton.

She has since re-married, and now has two more children. [ 3 ] The children seem to have significant bonds with their grandparents, as well as other members of their extended family. Most

of these people seem to reside in Red Deer. Interestingly, the children have regular contact with their maternal grandparents and other relatives on their mother’s side, even though their mother has a strained relationship with her family. [ 4 ] Sadly, the parties have had difficulty co-parenting. There have been multiple court applications and appearances. Most of these have arisen in the last five years. They have included requests to change parenting so that the children resided primarily with their father, and applications to have the children returned to the mother in accordance with court orders.

Child and Family Services has been involved. At one point, the father’s access was suspended. A Practice Note 7 Report was conducted. [ 5 ] The Practice Note 7 Report made it clear that both children were aware of the conflict between their parents and that they hated being in the middle of it. It was their impression that they were being questioned about what happened at the other parent’s house. They also often overheard conversations that should have only been heard by adults. Their biggest wish was that the parents could get along.

Unfortunately, neither parent seems to have exerted much effort in trying to make that wish come true. [ 6 ] As in almost all cases involving parenting, the decision in this matter must be based on what is in the best interests of the children. In trying to determine what is in the best interests of the children, I must consider the factors listed in s.16(3) and s.16.92(1) of the Divorce Act . These are not exhaustive lists, and not all of the factors are relevant to this situation. [ 7 ] Since separation, both children have spent the vast majority of their time in the care of their mother.

This means that CES has the burden of proving that the children’s relocation to California would not be in their best interest. [ 8 ] There is no doubt that a move to California would be a drastic change for the children. They would move away from their family, friends, and contacts here in Alberta. They would have to form new relationships in a new country. They would move to a new school, and a completely new curriculum.

No matter what arrangements are made, they will have less contact with their father and other family relations. [ 9 ] The children are of an age where their feelings regarding the move should be considered. However, children aged 15 and 13 do not get to dictate their living situation. Both children expressed reservations about the move to California, and have indicated they would like to stay with their father full-time. This may be because their father has a more permissive attitude towards the children. Additionally, the younger child seems to be substantially influenced by her older brother.

Whatever the reasons, it is clear that they are not excited about the possibility of moving to California. [ 10 ] Little detail has been provided regarding the reason for the move to California. LMS indicates that the move is for financial reasons. She is concerned about the possibility of layoffs happening in the Alberta healthcare system. She is also concerned about the possibility of wage rollbacks and possible changes to her pension. None of these things have actually happened, and none even appear imminent.

They may happen at some point in the future, but even that is not definite. [ 11 ] To improve her financial stability, LMS plans to quit her job in Alberta and moved to California. Once there, hopefully she and her new husband can find employment. Although she is confident they will have no problems finding employment, at the moment, neither she nor her husband have any offers of employment in California. [ 12 ] Another reason LMS gives for the relocation is her concerns about the Alberta education system. She is concerned that possible government cuts may have a negative effect on the children’s education.

Again, these concerns are possibilities, not certainties. She has specific concerns about programs assisting students with ADHD, and how their elimination might affect one of the children. There is no evidence regarding what accommodations are available for students with ADHD in the Californian education system. [ 13 ] If she moves to California, LMS plans to live close to her cousin who has an eight-year-old child. She is also hopeful that her in-laws will also move to California. The children currently see the in-laws regularly, and have developed a relationship with them.

LMS sees the continuation of this relationship in California as providing some stability for the children. However, the in-law’s relocation at the moment is only a possibility, and not a reality. [ 14 ] LMS has submitted that she is willing to be reasonable and flexible regarding parenting time for CES, however she has provided few details regarding a proposed access schedule.

If the children start to reside primarily with their father, and their mother moves to California, CES has proposed that the children spend all of their extended school holidays and half of their summer holidays with their mother. [ 15 ] Regardless of where the children reside, transportation between California and Alberta will be an issue. At the moment, the world is experiencing a pandemic. Hopefully its severity is easing, and things will return to a new normal sometime in the future. Sadly, there is no guarantee that will happen anytime soon.

At the moment, travel between Canada and the United States is possible. That may or may not continue. Additionally, travel between California and Alberta is expensive. Although not specifically addressed, from the evidence provided it seems that the costs of travel will be an issue for both parties. [ 16 ] It is difficult to assess how likely either party would be to follow any new order put in place after the children change residences. For the past five years, the parties seem to have chosen to settle most of their disagreements through the court process.

CES directly violated a court order by not returning the children to their mother as required. This resulted in him losing parenting time with the children. LMS has at times restricted electronic access, but that has never resulted in her losing parenting time. [ 17 ] It is impossible to tell from the evidence presented whether the greater separation between the parties would reduce the hostility between them. It is clear from the evidence that there is extreme animosity between LMS and CES. The distance and less frequent contact between the parties might reduce the acrimony.

The distance and possible need to engage multiple court systems and enforcement agencies might embolden one of the parties to risk non-compliance with a court order. [ 18 ] It is also difficult to tell from the evidence what sort of impact either the move or the change in parenting would have on the children. Either would obviously represent a major change in their lives. Either alternative would result in less time with the other parent. The move to Red Deer with their father might have less of an impact, but it would still require a change in schools and would necessitate

making new friends. [ 19 ] Both children have expressed hesitancy about the move to California. This is understandable. It represents a major change in their lives and children usually want stability. They have expressed a desire to live with their father, but that may be due to his more permissive parenting style. Both children also have a desire to stay together, which may have influenced the younger child’s thinking. They also have a desire to please their parents, and do not want to hurt anyone’s feelings.

This may have also played a role in their thinking. [ 20 ] If they move to California, they will have less frequent contact with their father. They will also have less frequent contact with his extended family as well as their mother’s extended family. However, they would continue to have regular contact with their two step- siblings. They will also have the opportunity to develop new relationships with extended family in California. [ 21 ] Many children move to new locations with their parents. Some within a city, some within a province, some within a country, and some internationally.

Most are able to adapt to the challenges. In this case, the children’s concerns about moving are natural. There is no evidence pointing to something specific about the children that would make either of them unable to overcome the challenges associated with a move. The move to Red Deer would likely be easier on them, but there is nothing indicating they would be unable to adapt to the move to California. [ 22 ] As stated earlier, the onus is on CES to prove that the relocation of the children to California would not be in their best interests. This is a case in which each alternative has its pros and cons.

Balancing those pros and cons, I find that each alternative would have a similar effect on the children. If the onus were on LMS, I would find that she has not met her burden. However, the onus is on CES and I find that he has not met his burden. [ 23 ] Although LMS’s reasons for moving may not be fully explained, she is entitled to live her life in the manner of her choosing. I cannot find that she has any improper motive for the move. LMS believes the move would be in the children’s best interests.

Although the move will certainly place stresses on their lives, and will be a significant change for them, there is no evidence to show that it is not in the children’s best interests. [ 24 ] CES was seeking a change in parenting such that the children would reside primarily with him. The children have resided primarily with their mother since 2007. Their father had parenting time with them on alternate weekends from 6:00 pm Thursday until 6:00 pm Monday. CES has brought applications to change primary parenting in the past, but they were adjourned sine die.

This application seems to have been brought as part of his opposition to LMS’s move. The materials provided focus primarily upon LMS’s proposed move. I find that there is not sufficient evidence to change the parenting regime such that CES would be the primary parent. [ 25 ] I am prepared to grant LMS’s application to move with the children to California. CES’s request for a change in parenting is denied. When the move details are finalized, the parenting

schedule will need to change. Until then, the current order will remain in effect. Once the details are finalized, the parenting order shall be changed as follows. [ 26 ] I find that LMS must provide six weeks notice of the move date to CES. He will then have five consecutive weekends with the children. He must be notified of the children’s new address, school name and location, and be provided with confirmation that the children have health insurance coverage. CES shall have access to the children’s school and medical records.

He shall be notified in advance of all scheduled medical appointments, and notified within 24 hours of any emergency visits. Notice must include the reason for the visit, the results, and proposed course of treatment. If either of the children are absent from school for more than one day, he must be notified. The notice must include the reason why the child is absent, and when the child is likely to return to school. [ 27 ] Within two weeks of the children being registered in school, LMS must provide a calendar listing the school start and end dates, as well as all holidays.

CES will then have 60 days to decide on which holidays he will have parenting time. The children can miss no more than five days teaching days during the school year to facilitate parenting time with their father. CES also has to provide notice as to whether the parenting time will occur in California, or in Alberta. He will also have a minimum of six consecutive weeks of parenting time during summer break.

He must advise CES at least six weeks prior to the end of school when his summer parenting time will begin and end. [ 28 ] CES can have parenting time for the entire Christmas break for the first Christmas after the children move. For subsequent Christmases, he can have no more than half of the Christmas break. [ 29 ] The costs of the children’s travel to Alberta shall be deducted from CES’s child support obligations.

The cost shall include plane tickets and associated fees, any meals required during travel, and $100 for transportation to and from the airport. [ 30 ] If LMS intends to travel outside of California with the children, she must provide notice 30 days in advance to CES. The notice must include an itinerary, along with contact information. If CES intends to leave Alberta with the children, he must provide similar notice.

Neither party shall unreasonably hold consent for the children to travel outside of Canada or the United States. [ 31 ] Once LMS establishes a residence in California, she may not move more than 30 miles from that location without either the consent of CES or permission of the court. [ 32 ] Within 30 days of their arrival in California, LMS must arrange, at her cost, for both children to see a counsellor to deal with the issues arising from the move.

She shall follow any recommendations that arise as a result of the counselling, and also notify CES of the results. [ 33 ] This matter can be reviewed one year after the children move.

[ 34 ] Unless altered by this decision, the previous order shall remain in effect. Heard on the 8 th day of July, 2021. Dated at the City of Edmonton, Alberta this 3 rd day of September, 2021. G.R. Fraser J.C.Q.B.A. Appearances: Lawrence Hazlett for the Plaintiff Billal Saleem for the Defendant