Sekyi v Sekyi, 2021 ABQB 915

Court of Queen’s Bench of Alberta Citation: Sekyi v Sekyi, 2021 ABQB 915 Date: 20211115 Docket: 4803 192256 Registry: Edmonton Between: Ikran Hassan Sekyi Plaintiff/Respondent - and - Elorm Sekyi Defendant/Applicant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice James T.

Neilson _______________________________________________________ [ 1 ] In this application, the Applicant father, Elorm Sekyi, applies for an order for primary residential care of the children in Fort McMurray, Alberta, with reasonable and generous access to the mother, with travel to be shared equally. The Respondent mother, Ikran Sekyi, seeks an order for primary residential care of the children in Edmonton, Alberta, with reasonable and generous access to the father, and the father bearing sole responsibility for travel. [ 2 ] The parties were married on March 4, 2013 and they separated on August 18, 2020.

There are two children of the marriage, a

daughter NS born on March 16, 2013 and a son ES born on February 20, 2017. [3] From June to August, 2018, the parties were cohabiting at Elorm’s residence in Fort McMurray, Alberta. He had acquiredthis residence prior to the marriage. [4] On August 18, 2020, Ikran took the two children with her from Fort McMurray and has been residing since then inEdmonton, Alberta. Ikran filed a Statement of Claim for Divorce and Division of Matrimonial Property on September 23, 2020. [5] On January 13, 2021, Elorm brought an application for:

a) an order for return of the children to Fort McMurray, Alberta;

b) an order for the primary residential care to be granted to him and reasonable and generous access to the Respondent mother. [6] On January 18, 2021, Ikran filed a cross-application for child and spousal support. [7] On March 4, 2021, an order was issued by the Court on a without prejudice basis as follows: 1. The husband shall have parenting time with the children two weekends per month from Friday to Sunday, to be arranged betweenthe parties one week in advance in writing. Text or email shall suffice. 2.

The husband shall be entitled to electronic communication with the children two times per week to be facilitated by the wife. 3. The husband shall pay child support to the wife in the amount of $2,126.00 per month commencing March 1, 2021 and continuingon the first of each month thereafter. The husband shall be entitled to deduct $300.00 from his child support obligation for each weekendof access that he exercises pursuant to this Order. 4.

The wife’s application for interim spousal support is dismissed at this time. [8] At an Early Intervention Case Conference the presiding judge issued an oral hearing order, filed on April 6, 2021, directingthat a two-day hearing be held on September 21 and 22, 2021, where brief oral evidence may be heard on the following terms:

a) The type or nature of the application to be heard at the hearing is for: request by the father to have the children returned to FortMcMurray;

b) The specific issue for which oral evidence is necessary at the hearing, is with respect to parenting; and

c) The reason that oral evidence is needed to determine this issue is because the Applicant wants the children returned to FortMcMurray and the Respondent wants to remain in Edmonton with the children. The Respondent has alleged that the Applicant is not anactive parent and the best interests of the children are therefore to remain with her in Edmonton. [9] Elorm and Ikran provided affidavit evidence in support of their positions and gave oral evidence on the dates scheduled byorder. Background [10] Elorm is a professional engineer currently employed by Syncrude at Fort McMurray.

Ikran is currently employed inEdmonton by the Rupertsland Institute as an Education Manger. The children are currently enrolled in school in Edmonton. [11] The parties began cohabiting on May 5, 2012. During their cohabitation and following their marriage in 2013, the partiesresided together as a family in Fort McMurray. In August, 2013, Elorm obtained employment in Fort Saskatchewan and the partiesmoved to Edmonton. Elorm was unemployed from November 2016 and was at home with Ikran and NS, until Elorm obtainedemployment in Fort McMurray in August 2017.

Elorm moved there, living in his previously acquired residence. Ikran continued to livein Edmonton with the children and Elorm would visit the family 1-2 times per month from Fort McMurray. [12] On February 27, 2020, Ikran moved to Fort McMurray with the children where NS attended school briefly until she wasrequired to stay at home because of the Covid pandemic. As stated, Ikran moved back to Edmonton with the children on August 18,2020, and the couple remain separated.

The Best Interests of the Children [13] In determining the primary residence for the children, the Court must consider the evidence that has been presented in thisapplication and then consider the factors to be applied in a mobility application as set out by the Supreme Court of Canada in Gordon vGoertz, (SCC), [1996] 2 SCR 27, and the factors to be considered in determining what is in the best interests of thechild set out in s. 16(3) of the Divorce Act. Pursuant to s. 16(2), the Court shall give primary consideration to the child’s physical,emotional and psychological safety, security and well-being.

The issue is always, and remains, determining what is in the best interestsof the children. [14] Where, as here, the parents reside in different geographical areas, the Court must consider, in its entirety, with which parentare the best interests of the child met.

The Court of Appeal in Scott v MacLean, 2020 ABCA 173 at paragraph 13, summarized theCourt’s consideration in this regard: …In every mobility case, regardless of the existing parenting regime, the court must consider the best interests of the child in each of thenew options: the effect on the child of staying with one parent, versus relocating with the other. Often the court exercises its discretion infavour of the least harmful situation for the children. It is not strictly a decision about whether children stay or go, but the impact on

them of the lessening presence of one parent and the greater presence of the other, combined with consideration of the challenges of fostering parental relationships in the circumstances. [ 15 ] Elorm asserts that the move by the mother to Edmonton with the children constitutes a material change in circumstances that warrants him bringing this application. [ 16 ] Ikran did not provide written notice that she was moving to Edmonton with the children, although she testified that she had given verbal notice one week before the move.

Elorm did not consent to the move and Ikran had not made a court application for an order permitting the move. While it is always preferable that a parent not relocate without first informing the other parent and bringing a mobility application, the fact that the mother did not follow this course is not the determining factor.

The relevant inquiry is what arrangement is in the children’s best interests: Werry v Kish , 2021 ABCA 121 at paras. 8 and 9 ; Csorba v Csorba , 2017 ABCA 190 at paras. 9–10 . [ 17 ] I will now consider each of the factors in section 16(3) of the Divorce Act and set out my findings in relation to each from the evidence before the Court.

a) The child’s needs, given the child’s age and stage of development, such as the child’s need for stability. [ 18 ] Elorm submits that the relevant period to be considered is from February to August 2020, when the family was living together in Fort McMurray. He testified that the children had a stable situation and he was able to meet their needs, including education, health care, and extra curricular activities.

It is Elorm’s position that, should the Court direct that the children be returned to him in Fort McMurray as their primary residence, they would resume this stable relationship where their needs are being met by him. [ 19 ] Ikran testified that she decided to move to Fort McMurray in February 2020 because the marriage was in rough shape and she wanted to try, one more time, to see if her relationship with Elorm could work.

She decided that it could not, and therefore, she moved back to Edmonton with the children on August 18, 2020. [ 20 ] I find that the Court ought to consider the parties’ living arrangements in their entirety since the birth of each child. I find that while they were cohabiting, Ikran was primarily responsible for meeting the children’s needs, during the periods of maternity leave and thereafter with respect to housekeeping, providing meals, etc.

From August 2017 to February 2020, the children were residing with Ikran in Edmonton, with the father visiting one to two times a month from Fort McMurray. [ 21 ] I find that Ikran has been and continues to provide a stable environment for these young children and that their needs are being met by her.

b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life. [ 22 ] Both parents love their children. [ 23 ] Elorm’s relationship with NS is closer than with ES. Since ES was born in 2017 until February 2020, he has had his closest relationship with his mother. Elorm’s parents live in Ghana. After NS was born in 2013, Elorm’s mother came to Fort McMurray to help with the child for about three months.

Elorm testified that, should the Court declare that he is to have the primary residence with the children, then his parents could move to Fort McMurray to assist with his parenting responsibilities although no such arrangement has yet been made. He would also have the assistance of a nanny. [ 24 ] Elorm does not have any family members residing in Fort McMurray, although he has some close friends. On the other had, Ikran’s parents and extended family members live in Edmonton, with whom the children have a relationship.

Ikran’s parents provide regular childcare assistance for the children while Ikran works. [ 25 ] I find that there is a stronger relationship between the children, Ikran and Ikran’s extended family.

c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse. [ 26 ] Elorm testified that Ikran has taken steps to isolate him from his children. In August 2020, she had enrolled the children in school and extra curricular lessons without his input. He is being shut out from his relationship with the children. He has difficulty communicating with Ikran regarding his access by telephone and in person. [ 27 ] Ikran testified, however, that she has never denied Elorm access to the children as provided in the March 4, 2020 without prejudice order.

Rather, it is Elorm who has not fully exercised his right to access the children twice a month. In addition, she agreed voluntarily that the children would live with Elorm for the month of July 2020. Elorm did not make arrangements to be with the children during the spring break. Over the Christmas break, he elected to travel to Ghana, rather than spending time with the children.

Although she and Elorm have had their differences leading to the breakdown of the marriage, she believes that it is important that their children maintain their relationship with their father. [ 28 ] Elorm testified that, under the current without prejudice order, it is difficult for him to spend much time with the children during each visit to Edmonton. It is about a five hour drive from Fort McMurray, so he drives to Edmonton on a Friday, sees the children on Saturday and returns to Fort McMurray on the Sunday. He stays in Edmonton either with a friend, or in a hotel.

This also involves expense, but the without prejudice order provides that a sum of $300 will be deducted from child support for each visit he makes to Edmonton. Most recently, she has enrolled the children in school and in extra curricular lessons. Her parents regularly provide care for the children when she is at work. On the other hand, Elorm has not been the parent primarily responsible for the children’s care. [ 29 ] Ikran also testified that Elorm is free to contact the children by the cell phone which he had purchased for them. He does so one to three times a week.

Also, if he has had any difficulty in contacting them, he would then contact Ikran to have the children call

him.

d) The history of care of the child. [ 30 ] As I have previously found, Ikran has been primarily responsible for the care of the children since their births.

e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained . [ 31 ] Given the children’s tender years, the children’s views have not been ascertained.

f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage. [ 32 ] Elorm testified that he has been tutoring his children on their Ghanaian heritage, including stories and moral guidance. Elorm attends a Christian church and the children would attend Sunday school, if they were primarily residing with him. [ 33 ] Ikran is of Somali heritage and her family is Muslim, although the children are not being brought up in the Muslim tradition.

They attend a Catholic school in Edmonton. [ 34 ] For her part, while they were together, Ikan did not witness Elorm teaching the children about his Ghanaian heritage or reading with the children or teaching them their ABCs. [ 35 ] I find, though, that each parent wishes to impart to their children aspects of their respective cultural and spiritual heritage.

g) Any plans for the child’s care. [ 36 ] If the children were to move back to Fort McMurray, Elorm testified that they would be enrolled in St. Kateri school and would resume their extra curricular lessons. A nanny would assist with childcare while he is working. He would enroll the children in sports and other activities available in Fort McMurray. [ 37 ] As matters stand, the children are now enrolled in school in the neighbourhood Catholic school in Edmonton and are provided for by their mother with the assistance of the grandparents.

h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child. [ 38 ] Each parent is gainfully employed and could provide the children with their physical needs. They each reside in comfortable homes. [ 39 ] Elorm had complained that he did not like the neighbourhood in south Edmonton where Ikran resides, fearing that the children would fall into a lifestyle of crime and immorality. I place no stock in this complaint. I find that it is without any basis in fact.

i) The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child. [ 40 ] Elorm testified concerning the communication difficulties he has had with Ikran, and the fact that he had not been consulted with respect to the children’s enrollment in school, or their extra curricular lessons. Ikran testified that, after moving to Edmonton in August 2020, she needed to take steps to enroll them in the local school before the commencement of the fall school term.

Elorm said that the children could continue with online learning through St. Kateri school in Fort McMurray, although they were not yet enrolled for that term. Ikran did not see this as practical in any event, as the children needed to attend a local school. [ 41 ] In his testimony, Elorm expressed remorse for the things he said to the children about Ikran following their separation.

Since then, he has had counseling to help him deal with his issues relating to the martial breakdown. [ 42 ] Ikran testified, and I accept, that she has not been putting up barriers for Elorm to access the children, or to obtain any information about the children’s progress in school. He has not always availed himself of this.

j) Any family violence and its impact on, among other things i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child. [ 43 ] Ikran testified that she had separated from Elorm because of controlling and abusive behaviour that she could no longer tolerate.

However, it was conceded that there has never been any complaint made to the police or Child and Family Services about any family violence, nor has there been any emergency protection order sought or issued.

Family violence is not a factor here in determining what is in the best interests of the child. [ 44 ] Section 16(6) of the Divorce Act provides that, in allocating parenting time, the Court shall give effect to the principle that the child should have as much time with each spouse as is consistent with the best interests of the child. [ 45 ] It is inevitable, as in the circumstances of this case, that one parent’s time with the children will be reduced when living in difference geographical areas; MacPhail v Karasek , 2006 ABCQ 238 at paragraph 55.

[ 46 ] As I have previously found, Elorm has not always exercised his right of access to the children under the previous without prejudice order. Ikran agreed that the children stay with Elorm during the month of July 2020. They could also stay with Elorm during the school break or the Christmas break, should he so desire. Conclusion [ 47 ] Considering all of these factors enumerated, I find that it is and remains in the children’s best interests to reside primarily with their mother Ikran in Edmonton.

I also find that, should the Court have ordered that the children be returned to live with the father in Fort McMurray, this would disrupt the stability of their current lives in Edmonton with the mother, in school, and in the community. [ 48 ] Accordingly, I direct that the primary residence of the children will remain with their mother Ikran Sekyi. [ 49 ] As previously ordered, Elorm shall continue to have parenting time with the children two weekends per month from Friday to Sunday, to be arranged between the parties one week in advance in writing.

Text or email shall suffice. [ 50 ] Elorm has submitted, in the alternative, that if they Court directs that the children’s primary residence shall remain with Ikran, then the responsibility for travel to and from Edmonton for the father’s access should be shared equally. [ 51 ] Ikran testified that she has difficulty with night vision and she does not have experience with highway driving.

However, I find that for weekend access by the father, it would be unreasonable to require the children to be driven from Edmonton to Fort McMurray, for 5 hours each way. [ 52 ] Therefore, Elorm will continue to be responsible for his transportation to and from Edmonton.

As previously ordered, the husband shall be entitled to deduct $300 from his child support obligation for each weekend of access that he exercises pursuant to this order. [ 53 ] Furthermore, as Ikran has agreed in testimony, Elorm shall have reasonable and generous access to the children, with one weeks’ notice to Ikran, during the children’s school breaks or vacation time should he be able to coordinate this with his own schedule. [ 54 ] Also, Elorm will continue to have regular electronic communication with the children. [ 55 ] In the result, the respondent Ikran Sekyi is awarded costs of the application requiring written briefs, including the two-day oral hearing, under column 1 of

Schedule C of the Rules of Court. Heard on the 21 st -22 nd day of September, 2021. Dated at the City of Edmonton, Alberta this 15 th day of November, 2021. James T. Neilson J.C.Q.B.A. Appearances: Timothy Snyder, Skovberg Hinz for the Plaintiff/Respondent Corie Flett, QC, Muessle Flett Law for the Defendant/Applicant