Keeping v Keeping, 2021 ABQB 892

Court of Queen’s Bench of Alberta Citation: Keeping v Keeping, 2021 ABQB 892 Date: 20211109 Docket: 4803 172877 Registry: Edmonton Between: Gregory Powell Keeping Applicant - and - Kelly Marie Keeping Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice S. Leonard _______________________________________________________ [ 1 ] On July 12, 2021, the Respondent mother sent a notice of relocation by registered mail to the Applicant father pursuant to the requirements of

section 16.9(1) of the Divorce Act , RSC 1985, c 3 (2 nd Supp ) (the Relocation Letter ). The father did not collect the registered mail and the Relocation Letter was returned to the mother. On October 19, 2021, the mother advised the father by text message that she and the child had relocated with the child to Moncton, New Brunswick. [ 2 ] This is an application by the Applicant father for the immediate return of the child to Edmonton, a police enforcement clause, and compensatory parenting time. The Respondent mother asks that the application be dismissed.

[ 3 ] The parties were divorced by a Divorce Judgement granted on April 18, 2018. There is one child of the marriage, born in June 2010. [ 4 ] The Divorce Judgement provides that the parents shall have joint custody with the mother having primary parenting. The mother is responsible for day-to-day decision making in the best interest of the child. The father has parenting time every Wednesday from 4:30 pm until drop off at school the following morning, as well as every second Friday after school at 3:15 pm to Monday morning.

The Divorce Judgement also addresses summer vacations and holidays. [ 5 ] Both parties are originally from the Maritimes. The mother deposes that the move to Moncton has enabled a closer relationship with extended family. Position of the Parties [ 6 ] The position of the father is that he has always been against the child relocating to the Maritimes. He alleges that the mother surreptitiously relocated the child to Moncton, New Brunswick without his consent.

He deposes that he did not receive the Relocation Letter and the move occurred without warning. [ 7 ] The father argues that although the mother sent the Relocation Letter , she did not engage the father in any further discussions about the proposed move. Despite the parties communicating by text messages throughout the summer and fall, the mother never indicated when she planned to move and led the father to believe that the move would not occur until the following year.

Finally, the father argues his immediate emergency application for the return of the child is evidence that he did not consent to the move. [ 8 ] The mother’s position is that she properly served the Relocation Letter . The mother asserts that the father did not respond to the Relocation Letter and in the absence of an objection from the father, she was entitled to relocate the child pursuant to the terms of the Divorce Act . [ 9 ] The mother also says that the father was aware of the mother’s desire and intention to move.

She regularly discussed the issue with the father and sought his advice with respect to an appropriate realtor. According to the mother, the father’s assertion that he did not know about the move is not credible. Issue [ 10 ] Did the father’s failure to respond to the Notice of Relocation entitle the mother to relocate pursuant to

section 16.91(1) of the Divorce Act ? [ 11 ] This application deals with a discrete issue surrounding the

interpretation of sections 16.9 and 16.91 of the Divorce Act . The application was not framed as an application for variation of a parenting order nor was it framed as an application for relocation. The materials do not address issues such as the best interests of the child or issues surrounding the burden of proof. While the Court must always consider the best interests of the child, the record is insufficient to engage in this analysis. That being said, there is nothing on the record before the Court to suggest any concerns regarding the child’s wellbeing.

Timeline: [ 12 ] In his affidavit, the father suggests that the first time he received notice of the relocation was in July 2021. The mother’s position is that she initiated numerous conversations with the father regarding a relocation to the Maritimes prior to July 2021. The timeline of events is summarized in the following paragraphs. All communications between the parties occurred by text message. [ 13 ] December 2020: The mother initiated a conversation about a potential move back to the Maritimes.

The father indicated that he had never considered a move back “home” but that he would “think on it more” if there were great opportunities there. [ 14 ] March 15, 2021: The mother initiated a conversation regarding housing prices in Moncton. In response, the father indicated that he had no plans to move anytime soon and that New Brunswick would not be the province he would want to move to. He said, “If ever I move it would be Newfoundland it’s where all my old friends and all the places I would want to be.” [ 15 ] May 30, 2021: The mother asked the father for a recommendation for a good realtor in Edmonton.

The father provided a reference. [ 16 ] June 13, 2021: The mother told the father that her house listing was going live the following day. The father responded, “Cool I hope you get what your (sic) looking for but too bad you don’t get to enjoy your garden if it sell (sic) fast.” The mother responded that she would be able to enjoy it for most of the summer because it would be “August 1 st at the earliest.” [ 17 ] July 15, 2021: The mother told the father that she sent him the Relocation Letter .

She said that there was a typo in the Letter showing that the move would occur on July 20 th but that “clearly we are not moving on July 20 th .” She noted that the parties had had many conversations by text about moving to the Maritimes but that the letter is a more formal way of discussing the matter. [ 18 ] The mother also said, “I understand that you don’t want to move and I respect that as I hope you can understand and respect that [the child] and I do want to be with family.

It would be a very healthy move for [the child].” She indicated that the move could not occur until her house sold, which would likely be next year but that she would like to discuss this with the father in the next few months.

[ 19 ] The father responded to the July 15, 2021 text message by saying, “I won’t ever sign a letter for my da (sic) to be relocated to another province as per our agreement.” [ 20 ] October 12, 2021: The father sent a text messages asking the mother if he could have parenting time during the week and then drop the child off on Saturday, October 23 rd . The mother responded by saying that they were moving on October 15 th . The father responded, “Yes it’s the weekend after that I’m talking about.” [ 21 ] October 19, 2021: The mother advised the father that she relocated with the child to Moncton.

This notification occurred on the Tuesday before the father was scheduled for his Wednesday parenting time. It is apparent from the text messages between the parties that the father was not aware that a move to the Maritimes had occurred. The mother states, “You can definitely see her. Whatever works for everyone. Christmas, summer, March break. I’m not putting limits on anything. I never have. You can FaceTime every day if you want. Your family can see her anytime they want. I put all of this in the registered notice of relocation letter that you didn’t pick up.

And I did tell you this in July.” [ 22 ] The mother then said, “I talked to a lawyer 3-4 months ago. I had to give you 60 days notice and I did. I expect you to be upset but we have talked about this for over a year. I desperately wanted you to move with us but you made that clear that you wouldn’t…” [ 23 ] The father responded to the mother’s text message by saying, “My lawyer said it’s illegal to take a child to a different province without consent and which I will never sign.

I’ll see him tomorrow and figure out mine and [the child’s] rights.” The mother’s response to this was “Ok.” Law and Analysis [ 24 ] The mother argues that she complied with the new relocation provisions in the Divorce Act . The father’s failure to object as required by the legislation entitled her to relocate. Do the contents of the Relocation Letter satisfy the statutory requirements of the Divorce Act ? [ 25 ]

Section 16.9 of the Divorce Act requires a person with parenting time or decision-making to provide a notice of relocation at least 60 days prior to the proposed relocation. The Divorce Act specifies the information that must be included in the notice.

Section 16.9 of the Divorce Act is as follows: 16.9

(1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

(2) The notice must set out (

a) the expected date of the relocation; (

b) the address of the new place of residence and contact information of the person or child, as the case may be; (

c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and (

d) any other information prescribed by the regulations. [ 26 ] The Relocation Letter is included as an exhibit to the mother’s affidavit. I find that the Relocation Letter meets the requirements of

section 16.9 of the Divorce Act . Did the father receive notice of the proposed relocation? [ 27 ] The father deposes that he did not receive the Relocation Letter . The mother asserts that she sent the Relocation Letter by registered mail on July 12, 2021 and that service by registered mail is valid whether or not the recipient claims the mail. The mother relies on Rules 11.22 and 11.2(2) (

c) of the Alberta Rules of Court , AR 124/2010 ( Rules of Court ). Both rules deal with “recorded mail.” [ 28 ] Recorded mail is defined by the Rules of Court as “a form of document delivery by mail or courier in which receipt of the document must be acknowledged in writing as specified in

Part 11.” [ 29 ] The delivery method used by the mother meets the definition of recorded mail. The exhibits to the mother’s affidavit show that the Relocation Letter was sent, Registered by Canada Post. A tracking number was assigned and the mother was able to print out records of delivery attempts. The documentation indicate that a notice card was left with the recipient and that after 17 days, the unclaimed letter was returned to the mother. [ 30 ] The mother deposes that the Relocation Letter was sent to the father’s known address.

The father did not dispute that this was his address and as such, I accept that the Relocation Letter was sent to the father’s correct address for service. [ 31 ] Rule 11.22 provides that “service is effected... on the earlier of: (

a) the date acknowledgement of receipt is signed, and

(b) 7 days after the date on which the recorded mail is sent. [ 32 ] Rule 11.2(2) provides that “service by... recorded mail is not invalid by reason only that... the addressee refuses to take delivery of the recorded mail.” See also Brace v McKen , 2019 ABCA 135 at paras. 10-18 . [ 33 ] I find that the Relocation Letter was properly served on the father. Was the mother entitled to rely on the father’s lack of response to the Relocation Letter? [ 34 ] The Divorce Act allows a person to proceed with a proposed relocation where

section 16.9 has been complied with and where the person who has received the notice, does not object within 30 days of having received the notice. [ 35 ]

Section 16.91(1) provides that an objection must be in the form prescribed in the regulations or in an application for a parenting order or a variation order.

Section 16.91 is as follows: 16.91

(1) A person who has given notice under

section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if (

a) the relocation is authorized by a court; or (

b) the following conditions are satisfied: (

i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in (

A) a form prescribed by the regulations, or (

B) an application made under subsection 16.1(1) or paragraph 17(1)(b), and (ii) there is no order prohibiting the relocation.

(2) The form must set out (

a) a statement that the person objects to the proposed relocation; (

b) the reasons for the objection; (

c) the person’s views on the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and (

d) any other information prescribed by the regulations. [ 36 ] There is no dispute that the father did not object pursuant to the requirements of

section 16.91 . That being said, the facts deposed to by the parties make it clear that the father was opposed to a move. The mother had expressed her desire to relocate on several occasions and the father had never agreed to the mother’s suggestions. [ 37 ] Further, on July 15, 2021, when the mother told the father that she sent the Relocation Letter , the father responded, “I won’t ever sign a letter for my da (sic) to be relocated to another province as per our agreement.” [ 38 ] The question for the court is whether, in the face of the father’s objection, the mother was nonetheless entitled to rely on the father’s failure to object in the form and manner contemplated by

section 16.91 of the Divorce Ac t . [ 39 ] The Divorce Act codifies a process that must be followed where one parent wishes to relocate with the child. Before the Act was passed, Parliamentarians were alive to the issues that might arise if the party receiving the relocation notice resided in a northern or remote community, was a member of a vulnerable community, or could not afford to retain a lawyer. [ 40 ] Further, the debates on the proposed legislation highlighted that upon receipt of a relocation notice, the non-relocating parent would have no option but to file an application in court.

Despite these concerns, the intention of legislators was to “ensure there is a fair ability, as well as an efficient and smooth process, for all sides to have their opinions heard as a result of the potential relocation.” See Canada, Parliament, House of Commons Debates , 42 nd Parl, 1 st Sess, Vol 148, No 374 (January 30, 2019). [ 41 ] The Relocation Letter was sent on July 12, 2021. The sixty-day notice period expired on September 10, 2021. The relocation did not occur until October. Although the father deposes he did not receive the Relocation Letter, I find that this was a conscious decision.

He did not respond to the delivery notice and therefore did not receive the letter. Having received the text message from the mother on July 15, 2021, the father was well-aware of the contents of the Relocation Letter and what it implied. Choosing not to respond to the notice did not release him from his obligations under the Act , nor did it disentitle the mother from relying on the provisions of the Act . [ 42 ] Further, although the father claims he was not aware of a move until after it occurred, this is inconsistent with the evidence.

The father provided the mother with a recommendation for a realtor in May, and in July, the mother told the father that she had listed her house for sale.

[ 43 ] In argument, counsel for the father suggested that a move to a new house was not synonymous with moving to a new province. While that might be the case, the issue would certainly have crystallized when the father received the July 15 th text message from the mother about the Relocation Letter . Further, on October 12, 2021, in response to a request for change to his parenting time, the mother told the father that they were moving on October 15 th . [ 44 ] This case does not involve a vulnerable person, someone from a remote community where the mail might be delayed, or someone that did not have a lawyer.

This case involves a parent that chose not to participate in the process. The codification of a relocation notice process was intended to give both parties predictability. [ 45 ] In circumstances, as here, where the non-relocating parent refuses to engage in the process and is against the move, it may seem more equitable to conclude that the relocating parent should bring an application in Court for relocation, particularly where the relocating parent knows that the non-relocating parent is against the move.

However, this unnecessarily places the burden on the relocating parent and undermines the predictability of the codified relocation notification process. [ 46 ] The relocating parent is entitled to rely on the provisions of the Divorce Act , even where there is knowledge that the non- relocating party is opposed to the move. The non-relocating party cannot lay in the weeds and rely on his or her own refusal to participate.

He or she must respond and engage in the process. [ 47 ] This was an emergency application for the return of a child to Edmonton on the grounds that the father did not have notice of the relocation. I find that he did have notice of the relocation. The mother complied with the codified relocation provisions contained in the Divorce Act and was entitled rely on the father’s lack of objection, as contemplated in

section 16.91 . As such, the father’s application is dismissed. [ 48 ] To be clear, this decision does not consider whether the relocation is in the best interests of the child. The father may apply to the Court, with evidence, as to whether the relocation is in the child’s best interests. The child will remain in New Brunswick pending a determination on the merits of the relocation. Heard on the 5 th day of November, 2021. Dated at the City of Edmonton, Alberta this 9 th day of November, 2021. S. Leonard J.C.Q.B.A. Appearances: Mahendra Pillay Pillay Law for the Applicant Agota Taborosi Align Law for the Respondent