RGC v NDC, 2021 ABQB 775

Court of Queen’s Bench of Alberta Citation: RGC v NDC, 2021 ABQB 775 Date: 20210924 Docket: 4803 189379 Registry: Edmonton Between: RGC Applicant - and - NDC Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] A father applies for a one-time expansion of his parenting time and for permission to take his 10-year-old daughter on a family-wedding-related trip to Fogo Island, Newfoundland. [ 2 ] The mother is opposed.

[ 3 ] I find that the proposed trip is in the daughter’s best interests and accordingly vary the father’s parenting time to allow the trip to occur and approve her accompanying him. B. Background [ 4 ] The current parenting is per Burns J.’s order of December 3, 2019, under which the child resides primarily with the mother, spending every third weekend (including overnights) with the father.

That order makes no mention of summertime or other holiday access. [ 5 ] At the application in Family Chambers on September 20 th , the father referred to additional summer-holidays parenting time for him, namely, two weeks in each of July and August, which he said he did not exercise in light of uncertainty over the timing of the family wedding in question (marriage of his niece).

That wedding, originally planned for the summer, was postponed, to October 2 nd . [ 6 ] The mother’s affidavit made no mention of summertime or other holiday access, and she did not raise that subject in her submissions at the application. [ 7 ] I proceed on the basis that, whether by some other order or agreement between the parties, the father was supposed to have the access described by him i.e. two weeks each summer month.

However, I also proceed on the basis that, even if some uncertainty surrounded the timing of the wedding, he elected not to exercise the summertime parenting available to him i.e. he cannot rely on non- exercise of that parenting time in support of his current application.

In other words, he is not somehow “owed” time by the mother. [ 8 ] Effectively, the father is seeking both a (one-time) variation in the parenting arrangement (expanding his “every third weekend” access to a continuous block of sixteen days (September 25 th to October 10 th , inclusive), plus authority to travel to Newfoundland during that block of time. C.

Positions [ 9 ] As the father explained it: • all (or, as the mother stated, virtually all) of his family will be gathering in Fogo for this wedding; • coinciding with the wedding, or at least occurring some time during the planned trip, the father’s parents will be celebrating their 50 th wedding anniversary, also in Fogo; • the daughter has not been to Newfoundland since she was three or four i.e. about six or seven years ago; • she has not seen her paternal grandparents for three years (since their last trip to Alberta); • she is “excited” about the trip; • she sometimes asks if she can extend the time with her father during his access weekends; • her school principal has endorsed the trip as a “valuable cultural experience”; • a school teacher in his circle of acquaintances has also endorsed the trip for the same reason; • it is important (to the father) that his daughter enhance or renew her ties to her Newfoundland relations and experience “Newfoundland life” at large; • as he understands it, Newfoundland is not experiencing any kind of runaway or otherwise unmanageable pandemic – in fact, the opposite, with very few new cases; • he is “double vaccinated”, and his daughter (at age 10) is not eligible to be vaccinated, both are presently able to travel to Newfoundland with no other “preconditions”, and they are not subject to any quarantine restrictions on arrival or to any (in Alberta) on their returns; • the wedding and anniversary celebrations will both comply with all applicable pandemic directives; • he intends to follow all applicable pandemic regulations in Newfoundland, and same for his daughter, throughout the proposed trip; • all told, his daughter will miss seven days of school (with no school on September 27, September 30, October 7 or October (11); • the mother has made it difficult for any paternal relations to connect even remotely with the daughter; and • overall, the proposed trip is bound to be enjoyable, family-affirming, culturally enriching, and life-memories-making. [ 10 ] The mother’s position is that: • the daughter is not overly enthused about the (possible) trip;

• going for the proposed period (sixteen total days) will cause her to miss too much school. (Per her teacher, it is important that she not miss the upcoming school weeks, which are featuring and will continue to feature much relationship building and classroom-dynamic formation); • over the summer (2021), the daughter occasionally wanted to close out weekends with her father earlier than “schedule”; • the daughter may get homesick if the trip is any longer than one week (mother suggests alternate trip dates of September 29 to October 6); • as noted above, it is not the case that “all members” of the father’s family will be in attendance the Fogo wedding; • travelling during the pandemic is generally unwise (“what if the daughter gets sick while they are in Newfoundland?

Or after her return? Would she have to miss even more school?”) • the daughter has returned ill (strep throat, headaches) from other father-access weekends; • she does not in fact block remote access to the daughter by any paternal relations (“anybody can contact her anytime”); and • she asked the father what he would do if, after (say) five days out, the daughter said she wanted to go home.

He replied (effectively) that there is no chance that she will be bored or run out of things to see and do in Fogo and area during the trip but that, if it were a “true emergency”, he would cut the trip short and return to Alberta with her. D. Travel-permission case law [ 11 ] I draw guidance from the following cases: • trip from Ontario for six-year-old to attend father’s wedding in Alberta approved: Barritt v Barritt , 2016 ONSC 4746 (Broad J.) (paras 8 , 10, and 11): It is well known that when dealing with issues of custody and access the court’s only concer n is the best interests of the child.

What is in the best interest of the child is contextual and will depend upon the particular circumstances of the child under consideration. … a review of the case law has indicated that attending a family wedding, and in particular a wedding of a parent, will very often be held to be in the child’s best interests (see Fearon v. Fearon 2007 CarswellOnt 6295 (S.C.J.) , Pollington v. Rossi 2012 ONCJ 340 (O.C.J.), Broda v. Broda 2000 ABQB 634 (Alta Q.B.)).

The intangible benefits that such an experience can have in the life of a child was commented on by Veit, J. in Broda at para. 18 : In this case, it is obvious that the children would like to be allowed to leave the province to attend a family wedding in California and that such a trip would provide benefits to them. Apart from the pleasure of a trip, the trip would allow them to attend at, and participate in, a family wedding; a social ritual like a wedding may assist in the building and strengthening of emotional links to a strong and stable family network of support which is assuredly important for children.

Their participation in any such activities help anchor their place in a loving family and is obviously to be encouraged. The constellation of likely benefits associated with participation in the family wedding can perhaps be summarized by saying that this activity is likely to add to the children's sense of belonging. S. 16(10) of the Divorce Act requires the court to give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.

In my view this principle refers not only to the quantity of the contact, but the quality . … The applicant is naturally apprehensive with the prospect of the child travelling to another province and for at least part of the time being in the care of persons who are unknown to the applicant, and with whom the child has had the little contact to date.

However, I am not satisfied on the evidence that the applicant has demonstrated any well-founded cause for concern that the respondent will not act responsibly in seeing to it that the child is properly and safely cared for both during the wedding celebration and on the overnight following the wedding . … [emphasis added] • trip to the USA to attend a family wedding regarded as obviously in the children’s best interests: Gill v Gill , 2015 ABQB 367 (Burrows J.) (para 19 ); • cross-Canada trip not in child’s best interests in part because of “… the risk of exposure to the SARS-CoV-2 virus to Y if Y and the mother were to travel to Vancouver.

Travel at this time is against the advice of public health experts, and can only be considered when essential . Travel not only puts Y at risk, but creates public health concerns, of which we all must be cognizant as we cope with the COVID-19 crisis”: Amirzada v Alemy , 2020 ONSC 1979 (Akbarali J.) at para 31 (d); • on the same (pandemic) subject, see also Hasan v Hasan , 2020 BCSC 862 (Shergill J.): There is ample evidence that the respondent’s actions by travelling across international barriers during this pandemic have put the children at real risk of harm.

The government prohibition against non-essential international travel, the closing of the Canada-US border, and the requirement of a mandatory quarantine period of two weeks when one returns from travel to the United States, are clear indication that the governmental and health authorities consider the coronavirus to be so dangerous that protection of the public requires these extreme measures be put into place .

As noted by the Court in Morgan at para. 8 , “…it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.”

To the extent that it is necessary, I also take judicial notice of the fact that a variety of agencies and institutions, including the BCSupreme Court, have released well-publicized guidelines to address the risks posed by the ongoing COVID-19 pandemic.

Theglobal travel advisory issued by the Government of Canada advising against all non-essential travel outside of Canada, the factthat the RCMP and local police have been given powers to enforce the quarantine imposed by the federal government for peoplereturning from international travel, and the extremely stiff penalties for breaking self isolation orders are all indicative of theseriousness of the potential risk of contracting or transmitting coronavirus. … In my view, the real risk of harm to the children is not ameliorated even if the respondent takes the precautions he has outlined.

Notably,the restriction against non-essential travel does not indicate that non-essential travel is acceptable if the necessary precautionsare taken. Rather, precautions are necessary even in the case of essential travel.

Here there is no evidence that the children’s trips toVirginia to spend time with family and friends, constitute essential travel. [paras 35-37 and 42] [emphasis added] • cross-international-border trip during pandemic not approved as it “would include stopovers in two American cities … [putting]children’s health at risk unnecessarily”: SB v MP, 2020 BCPC 68 (Wingham PCJ) (para 36); • up-to-three-week trip to Israel with terminally ill mother to visit her family held in children’s best interests despite unsettledconditions there: Kazdan v Kazdan, (ONCA) (paras 2 and 5); • two-week trip to Argentina for family reunion not in best interests of autistic child with pronounced need for stability androutine: Droit de la famille – 173165, 2017 QCCS 6109 (Moore J.) (paras 2, 5, 6, 10, and 11); • trip to Brazil permitted albeit “the travel should only be permitted between June 15 and August 25, 2012, as that travel periodwill minimize the disruption of the children’s school year this year and will have them return in sufficient time to prepare for thecommencement of the following school year”: Silva v Salanova, 2012 BCSC 1787 (Master MacNaughton) (para 2); • trip to Malysia “in the children’s best interests [given] the opportunity to visit with their extended family” and “[no] significanthealth risks associated with travel [there]”: Edwards v Edwards, 2014 BCC 13334 (Ross J.) (paras 32 and 33); • permission denied for trip “outside of Ontario” in light of the father not having overnight access at the time and his unreliabilityin complying with parenting schedules: Ascento v Davies, 2012 ONCJ 491 (Sherr J.) (para 50); • 3.5-week trip to Zimbabwe for 3-year-old not approved in light of arduous travel itinerary, Government-of-Canada cautionabout “unpredictable security situation” in that country, and unlikelihood the child “will have any appreciation of [certainforecasted cultural and outdoor experiences], nor is he likely to retain any meaningful memory of [the proposed] visit, given hisvery young age”: Palterman v Palterman, 2015 ONSC 1823 (Gauthier J.) (paras 9-14); • five-week trip to California to accompany mother travelling for work not permitted: Saini v Tuli, 2021 ONSC 3413 (Faieta J.): A decision regarding whether a child should be permitted to travel outside Canada is an incident of parental decision-makingresponsibility and as such turns solely on whether it is in the child’s best interests: See ss. 16 & 16.1 of the Divorce Act, R.S.C.1985, c. 3 (2nd Supp.).

While I accept that Respondent’s evidence that she feels that her continued employment may be at risk if she does not attend work inperson, it is the best interests of the children that be considered not the best interests of one or both of their parents that isrelevant. When determining whether to grant a parent permission to travel outside the country with a child, the court must weigh the benefits oftravelling against the plausible risks: Verbanac v. Dawson, 2019 ONSC 4473, para. 43. In this context, the children’s safety is a critical consideration.

The COVID-19 protocols clearly direct that non-essential outside ofCanada be avoided. I do not accept the Respondent’s speculation regarding the children’s relative risks of contracting COVID-19 ifthey remain with the Applicant while she is in California. Further, while the Applicant’s travel to the United States may be essential forher in order to maintain her employment, I am unable to find that the children’s travel to the United States is essential for them.

This is not a case where the trip provides the children with an opportunity to explore his cultural heritage by spending time in hisfamily’s ancestral homeland: Yacoub v. Yacoub, 2010 ONSC 4259, para. 21.

In this case, the children are simply tagging along withtheir mother who has to work for one month because she fears that their father lacks the ability to care for them. [Per para 31, fatherable to care for children] [paras 26-31] [emphasis added] • trip to New York City approved where father’s objections not related to merits or demerits of the trip “as it concerns thechild”, nothing “inherently dangerous, alarming, or worrying in any way [about the trip]”, and “the proposed duration (fivedays) poses no apparent risk or concerns”: MLR v SLR, 2020 ABQB 82 (my decision) (para 53); • trip to Somalia approved where court satisfied no material risk the father would not return the children and trip would giventhe children “travel opportunities … currently unavailable to them because of the intransigent position [the] mother has taken”:Tokaleh v Hassan, 2014 ONCJ 57 (Spence J) (para 87); • five-week trip to Pakistan not approved in light of significant safety and security concerns: Hamid v Mahmood, 2012 ONCJ 474(Spence J.) (paras 19-34); • two-week trip to Egypt for 9-year-old with compromised health not approved (undue risks to child, including risk arisingfrom unsettled conditions in that country): Kelada v Labib, 2016 ONSC 7737 (McSweeney J.) (paras 31-36); and

• trip to Haiti not approved “where governments are advising citizens to avoid all non-essential travel to the country” and “the situation of the illness of [a] mother [as in Kazdan v Kazdan , cited above, where travel to Israel was permitted] [is different] from that of [a] grandmother in terms of the trip being in the best interests of the child”: Ndju v Fort , 2011 ONSC 1716 (Annis J.) (para 7 ); • standing one-week winter trip during school time approved: Witt v Witt , 2019 ONSC 2180 (Lococo J.) (para 67 ): [An assessor] included a one-week winter vacation as an alternative to March break in her suggested timesharing regime, agreeing with the position that the potential benefits to the children of traveling with extended family [on a one-week winter vacation would be expected to outweigh the countervailing consideration of loss of time at school.

The effect of the latter consideration should also be mitigated by the requirement to contact the school with respect to missed work .

In all the circumstances, I agree that on balance that aspect of the recommended timesharing arrangement would be consistent with the children’s best interests. • blanket approval for during-school-time trip (up to five days away, to Florida, to visit grandparents) where children performing well in school, previous absences had not caused school difficulties, and mother arranged for “advance homework” and for children to perform some school work while away: Johnson v Taylor , 2015 ONSC 3750 (Healey J.) (paras 44-45 ); and • one-week trip to Mexico the week before Christmas holidays approved ( child “only in grade 4 … doing relatively well in school … not much learning involved that week [i.e. right before the holidays]”: TLM v JKB , 2018 BCSC 2237 (Weatherill J.) (para 69 ).

E. Application of those principles here [ 12 ] Here are the key factors here: • per the father (and the mother did not introduce contradictory evidence), Newfoundland has given the green light to travel to that province for both fully vaccinated individuals (such as him) and children under 12 accompanying such individuals (such as his daughter).

Per the Newfoundland Government’s pandemic website (“NLife with Covid-19) as of September 22, 2021, the father has accurately captured the current restrictions i.e. the Newfoundland door is open to this trip, with no quarantine or other restrictions applying; • neither party pointed to any federal travel restrictions for in-Canada travel; • per the father and not contradicted by the mother, Newfoundland is currently experiencing a less severe pandemic than Alberta; • the mother is not opposed to the trip in principle, only its duration (with, in her view, too much school missed); • as reported by the mother, the child is willing to go, for one week.

Per the father, the child is “excited” to go, presumably (given his overall submissions) for the entire duration; • the daughter has not been to Newfoundland, her father’s home province and where the bulk of his relations live, including his parents, for five or six years, and she has not seen her grandparents for about three years (on their last trip to Alberta); • the trip is (in part) to attend to important-to-the-father family occasions (niece’s wedding and parents’ wedding anniversary); • the father would have proposed the trip for the summertime (when school was out), but the wedding was postponed; • we are not dealing with unsettled or tumultuous political or general-security conditions as discussed in some of the consent-to- travel cases; • the daughter is old enough (10) to presumably understand and (ideally) appreciate the cultural and geographic experiences in store for her, and to remember them; • no evidence showed that the daughter has compromised heath or is not otherwise up to the proposed trip; • no evidence showed that the father is fundamentally unable to properly care for the daughter (even recognizing the illnesses noted by the mother); and • both family occasions will apparently be staged in compliance with all applicable Newfoundland health directives. [ 13 ] The primary downside of the trip is that the daughter will miss seven days of school, and this at a time when the school year is still getting rolling and schools are getting caught up after the very trying 2021/21 year. [ 14 ] Another downside is that the trip is overall longer than the mother would like, and it may be longer than the daughter would prefer. [ 15 ] On the upside, the primary benefit is that the daughter will have an opportunity to engage with her father and most, if not all, of her Newfoundland relatives during two significant family occasions and the events surrounding them, and generally to experience Newfoundland – particularly Fogo -- life throughout the trip.

F. Conclusion [ 16 ] I find that, on balance, going on the trip is in the daughter’s best interests. Ideally, the trip would not have required her to miss seven days of school, but I find that, on balance, the family and other experiences awaiting her in Newfoundland should more than outweigh the missed school in Alberta, particularly at her age and grade (10 and 5) i.e. when (in the ordinary course) absences are less

costly i.e. easier to make up (or prepare for in advance) than in more senior grades (especially high school). [ 17 ] I approve the trip on the conditions that: • the father follows all applicable health restrictions throughout the trip (including the air-travel segments) and ensure the same for, or by, the daughter; • the father provides his full itinerary and travel details, including contact information (with phone numbers), to the mother before leaving; • the daughter be allowed to contact the mother by video or phone every day for up to 15 minutes (or such additional contact as the father may agree to); and • the father consults with the daughter’s teacher(

s) at her school (if he has not done so already) concerning ways for the daughter to stay current with her school work while away (including, if possible, her connecting to the classroom remotely for at least two days in each of the two weeks in question) and shall assist the daughter in her stay-current efforts. G.

Closing note [ 18 ] The father has convinced me that the proposed trip is in the daughter’s best interests. [ 19 ] It is now up to him (with the assistance of his family) to deliver a trip that truly serves her best interests. [ 20 ] His performance may bear on whether he receives further enhanced parenting opportunities in the future. [ 21 ] I thank the father and the mother for their helpful submissions. Heard on the 20 th day of September, 2021. Dated at the City of Edmonton, Alberta this 22 nd day of September, 2021. M. J. Lema J.C.Q.B.A.

Appearances: RGC Self-represented Applicant NDC Self-represented Respondent