T.M. Applicant And: K.M. Respondent, 2019 NLSC 94

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR FAMILY DIVISION Citation : T.M. v. K.M. , 2019 NLSC 94 Date : May 3, 2019 Docket : 201802F0021 Between: T.M. Applicant And: K.M. Respondent Before: Justice Jane M. Fitzpatrick Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 26, 27 and 28, 2019 March 1, 21, 22 and 29, 2019 April 1, 3, 5 and 10, 2019

Summary: Application for the mother to relocate to Glace Bay, Nova Scotia with the child is granted. The parties shall have joint custody and the mother shall have primary care of the child. Appearances: Janet A. Tucker Appearing on behalf of the Applicant Lisa L. Baker Appearing on behalf of the Respondent

Authorities Cited: CASES CONSIDERED: Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, 19 R.F.L. (4th) 177; Pumphrey v. Pumphrey,(1997) (NL CA), 148 Nfld. & P.E.I.R. 340, 29 R.F.L. (4th) 283 (Nfld. C.A.); Whalen v. Whalen, 2005 NLCA 35;Robinson v. Locke-Robinson, 2017 ONSC 4964; Spencer v. Spencer, 2005 ABCA 262; T.(N.) v. P.(W.), 2011 NLCA 47; Wyatt v.Galway, 2016 NLTD(F) 36; Reeves v. Brand, 2017 ONSC 2306 STATUTES CONSIDERED: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.); Children’s Law Act, R.S.N.L., 1990, c.

C-13 REASONS FOR JUDGMENT Fitzpatrick, J.: INTRODUCTION [1] T.M. (the “mother”) and K.M. (the “father”) were married in Ontario on May 31, 2014 and separated on December 20, 2017.There is one child of the marriage, A.K.M., born in […] 2015 in New Brunswick. Their marriage was long distance until the mothermoved to Newfoundland on April 1, 2015 from New Brunswick. [2] After separation, A.K.M. resided primarily with the mother. Access by the father for the first months was problematic as thiswas an acrimonious separation.

Pursuant to an interim consent order dated May 30, 2018, the parties agreed to an interim sharedparenting arrangement. The shared parenting arrangement remains in place at this time. [3] While several issues are before me, the purpose of this hearing is to determine the issue of mobility sought by the mother. Inparticular, the mother wishes to return to her home of Glace Bay, Nova Scotia with their child, A.K.M., who is currently four years old.

The parties have agreed to have a settlement conference regarding all other outstanding issues, including child support and division ofmatrimonial property. [4] At trial, I heard from both parties as well as the mother’s mother, K, her ex-husband, J.K., the father’s old friend, L.F.C., andtwo Child and Youth Services social workers, Danielle Warford and Jessica Skinner Hollett. ISSUES [5] The issues before me are: A. Should the mother, T.M., be permitted to relocate to Glace Bay, Nova Scotia, with the child of the marriage, A.K.M? B. Is joint custody or sole custody in the child’s best interest? C.

What is the appropriate parenting arrangement flowing from the decision with respect to mobility? BACKGROUND [6] The father was born in 1966 and is from a small community near St. John’s. He was raised by his parents and has one olderbrother. He described his father as a severely abusive man, who was verbally, emotionally and physically abusive to both him and hismother. He is now estranged from his mother, father and brother, despite living next door to his parents and one kilometer away from hisbrother. [7] The father has an adult daughter, N, who is currently about 31 years old and is an independent adult.

They do not have arelationship. He has attempted to contact his daughter on several occasions, however, she does not respond. [8] The father disputes whether he is the biological father to another boy, born in […] 2013, with another woman, P.B. Heacknowledges that it is possible he could be the father of this child but DNA testing has never been done. The mother of that boy hasnever sought DNA testing nor child support from him. He has never met this child. [9] The father has never previously been married.

However, when he was in his early 20s and N was born, he lived in a common-law relationship with her mother for about a year. The father had a serious suicide attempt following the break-up of this relationship. [10] The father has a prior criminal record, including thirty-three (33) convictions from 1985-2008. This includes nine convictionsfor common assault and one for unlawfully in a dwelling related to ex-girlfriends. There are numerous convictions for breaches of courtorder. He testified about these matters during trial. These incidents occurred in his 20’s, 30’s and 40’s.

He told me they primarilyrelate to two ex-girlfriends. There is nothing further from 2008 until 2016 when he was convicted of theft.

[ 11 ] The mother was born in 1974 and is from Glace Bay, Nova Scotia. She has two other minor children namely S, born in 2009, and J, born in 2006, from a prior marriage to J.K (collectively referred to as “the girls”). This was initially a strained break-up; however, the mother and J.K. get along well at the present time. [ 12 ] The mother also has an older son, D, who was born when she was 18 years of age. He is an independent adult, approximately 26 years old, and is living and working in Halifax.

She and D have a good relationship. [ 13 ] The parties’ relationship commenced when they met online in the summer of 2013. At that time, the mother was living in Ontario and was divorced from her previous husband, J.K. The father was living in his hometown in Newfoundland. [ 14 ] The parties met in person for the first time in September 2013 when the father travelled to Ontario to meet her. Marriage was discussed as early as this first weekend together. [ 15 ] Around December 1, 2013, the father travelled to Ontario to stay for his second visit, which lasted a few weeks.

Around this time, the mother lost her job due to cutbacks and received a sizable severance of $32,000.00-$33,000.00. During this visit, the parties purchased a used Jaguar and a used Mercedes. [ 16 ] While the father was in Ontario, his father and his brother deliberately dug up his well. This caused the father to come home from Ontario to deal with the situation. The father sued his father and brother, and ended up with a $25,000.00 settlement. [ 17 ] In March 2014, the mother visited him in Newfoundland for the first time and stayed with him in his home.

It was just the two of them as the girls were in Ontario with their father for a visit. They were a serious couple planning marriage at this time. [ 18 ] Both parties agree that their marriage took place in Ontario on May 21, 2014. Their stories are divergent as to what the plan was for their future, including what province they intended on settling in long term. The mother maintains that they always intended to return to the mainland.

The father maintains that they always intended to settle in Newfoundland, possibly selling his home and buying a larger house. [ 19 ] In 2014, the mother obtained a consent order from J.K. and was allowed to move to New Brunswick for the start of the 2014 school year with the girls. The mother rented a farm house in New Brunswick. [ 20 ] In the summer of 2014, the girls went to Ontario with J.K. and the mother went to Newfoundland for several weeks to stay in the father’s home. [ 21 ] The parties’ child of the marriage, A.K.M., was born in New Brunswick in […] 2015.

The father travelled to New Brunswick to be present for his birth, however, he had to return to his home and work in Newfoundland. The mother continued to live in her rented farmhouse with the new baby and the girls. [ 22 ] In April 2015, the mother, the baby and the two girls moved to Newfoundland into the father’s home (the “matrimonial home”). This was a temporary move as the parties were both aware that the mother only had verbal permission from J.K. (the father of the girls) to temporarily move to Newfoundland. There was no court order with J.K. to allow the girls to move to Newfoundland.

This was because the parties both knew he would never agree to let the girls move permanently to Newfoundland. J.K. told me that he agreed to a temporary move to enable them time to sell the father’s house and move back to the mainland. [ 23 ] At the end of the summer of 2015, the parties drove to meet J.K. to get the girls back from their summer visit with their father. At this meeting, J.K. was told that the mother does not know if she can get her job back in New Brunswick and asked him if they could stay in Newfoundland, just for a while, until the father’s house sold.

J.K. was aware that the house was for sale and agreed to allow the girls to temporarily remain in Newfoundland, but, demanded that they be back in New Brunswick by the start of school in the fall of 2015. [ 24 ] The house did not sell and for the 2015-16 school year, the parties and three children remained living in the matrimonial home in Newfoundland. J.K. insisted on being advised of their progress with the house sale, as he was aware there were some issues with the house impeding its sale. [ 25 ] The parties had several periods of “living apart” due to the explosive nature of their relationship.

This sometimes resulted in calls to police and involved Child and Youth Services social workers. [ 26 ] The first separation was from around the end of January 2016 to April 1, 2016, when the mother moved into the house of a nearby friend. The children moved with her and the father visited them there. The parties reconciled and she and the children moved back into the matrimonial home. [ 27 ] This reconciliation only lasted one month. By May 1, 2016, the mother found a cabin in a nearby town and she moved there with the children to live. They lived there until October 1, 2016.

Again, the father stayed in the matrimonial home and visited them at the cabin. They continued to try and reconcile. There was a particularly bad fight during this period. The father removed the license plate from the mother’s car so she could not drive it. Police officers were involved at that time and made the father put the license plate back on her car. During other fights he had cancelled her car insurance and also had similarly removed her car’s license plate. [ 28 ] In September 2017, the mother was diagnosed for the first time with ADHD. She is now taking the medication “concerta” for this illness.

She described her condition as one which makes her say things without thinking. She said she often acts without fully thinking through her actions. She said this condition meant she could start four of five difference components of a task and then procrastinate like crazy. She said that she is doing better on medication. [ 29 ] The mother said the final separation was November 17, 2017 but she and the children did not move out of the matrimonial home until December 20, 2017. Once the mother was in a house alone with the children, she started several court processes.

[ 30 ] The father said they were still working on their relationship and it was not over until he was served with Court papers. On January 9, 2018, the father was served with the originating application for sole custody, an interim application for emergency order for sole custody and an emergency protection order (EPO) application. He was also criminally charged with assaults arising from earlier incidents between them.

He was later charged, in early 2018, with breaching the no contact provision of his undertaking to have no contact with her arising from the original charges. [ 31 ] In February 2019, the father was acquitted of all assault charges. He was convicted of breaching no contact orders. Circumstances surrounding the contact indicate it was non-violent, non-threatening contact. He remains on a probation order to have no contact with the mother. [ 32 ] At present, the father continues to live in the matrimonial home. He is a self-employed auto-body mechanic and his garage is located below the matrimonial home.

His line 150 income on his 2017 income tax return was $7,339.00. He reported a gross income of $22,410.00. He indicated that business during the winter of 2018 was slower than previous years. He also said that he has been living off a $25,000.00 insurance settlement he received in 2017 for his boat. [ 33 ] The mother lives in a neighboring community with the three children. She is currently employed as an employment insurance officer with Service Canada in the St. John’s area. This is a contractual position that she has held since June 2016. In 2018, she earned $55,000.00.

Since February 1, 2019, she has been on sick leave. [ 34 ] The mother would like to move to Glace Bay, Nova Scotia with the girls and their child, A.K.M. The father opposes the move of his son. The girls are not the biological children of the father nor is he seeking access to them. Their father is J.K. and he supports their move to Glace Bay. volatile relationship [ 35 ] From the time the mother moved to Newfoundland with the children, the relationship began to have issues.

While they both acknowledge there were good times, over time, conflict overtook their relationship. [ 36 ] Once they lived together, the parties discovered that they were different people. The couple clashed early in their cohabitation. Tasks of daily living, such as housekeeping, created great tensions between the parties. The father is very neat and tidy, used to living alone and having things in their place. The mother has a more relaxed style to living and housekeeping.

This situation grew worse over time evolving into severe conflict. [ 37 ] When the mother moved in with the children, this was the first time that the father ever had children living in his house. The father admits that he laid down some house rules. He attributes this partly to his need for order in the house and partly due to his protective instincts in not wanting the children to get hurt running around. [ 38 ] The mother describes the father as very controlling. She said as time went on in the house, he became very unpleasant and the list of rules for her and the children increased.

She said before he would walk upstairs in the evening after work from his garage, they would be ready to “tippy toe” around him because they knew he would start ranting about what rule or rules were broken that day or if something was out of place. [ 39 ] The mother provided a list of approximately 40 rules created by the father.

The list of rules she could remember included things like: all the shoes always had to be fully on the mat by the door, the girls always had to wash their hands after school, the recliner could never be up, cupboard doors could never be left open and the shower curtain always had to be pulled over. The mother said she was not permitted to move furniture nor put up a family picture. The mother had to wash dishes in the sink, not use the dishwasher. She was only permitted to drive one vehicle, the Touareg, despite purchasing other cars.

The father even showed the mother exactly how to lay a spatula in the sink to dry. [ 40 ] The mother said that the girls were not allowed to ever go around the house in bare feet. The father spoke to this and said he was afraid that, playing around, they might hurt their feet or step on a glass if they broke a glass. She believes it was about his need for neatness. [ 41 ] The father describes the mother as a woman who does not like housework. He said she would sweep the floor and leave the debris in a corner, rather than get a dustpan and pick it up. Her style of housekeeping was intolerable to him.

He said he was strict about the rules, but, if he ever confronted the mother on anything she would start screaming, becoming profane and belittle him. He would retreat downstairs to his garage or go out and sit in his car. [ 42 ] The father also describes the mother as having a hot temper. He said she would “get up in his face” and berate him about issues. He says this often occurred in front of the children.

He said this had a terrible effect on him as it brought back the abuse he endured from his father. [ 43 ] The parties agreed that a working dishwasher existed in the house but the mother was not allowed to use it. Since the father felt that the mother could not use the dishwasher “properly”, the father did not permit her to use it. The father told me that he saw the mother, in her home in Niagara Falls, only half empty a dishwasher. She would half reload it with dirty dishes and turn it on to wash again.

He was not going to allow this to happen in his home. [ 44 ] The father said that he “took over” washing dishes because the mother would only half wash them in the sink. He said that he would find dirty dishes in the cupboard that she had allegedly “washed” but visible dirt remained. The mother said that the father certainly found what he called “dirty” dishes in the cupboard, but she denies that he ever took over any dishwashing duties. She said he made her re-wash dishes frequently. Sometimes he took all the dishes out of the cupboard for her to re-wash. She found this behavior abusive and controlling.

The father claims this is untrue. [ 45 ] I heard from social worker, Danielle Warford, who brought along her notes from her discussions with the father when Child

and Youth Services social workers were involved with the family due to allegations of violence between the parents. Ms. Warford had meetings with the father where they discussed the marital discord. He told Ms. Warford about finding a plate with a spot of ketchup on it in the cupboard, asking the mother to re-wash it and her getting angry at him. He told Ms. Warford that he could find up to five dirty plates in the cupboard for her to rewash.

This testimony gave credibility to the mother’s version of events that he would make her re- wash dishes. [ 46 ] These types of conflicts between the parties slowly unraveled their relationship. [ 47 ] On February 8, 2017, while she was at work, the father disassembled A.K.M.’s crib and put it in the garage. A.K.M. always slept in the bed with his parents and never slept in the crib. He described the crib as taking up space in their bedroom and it had become a gigantic clothes hamper full of dirty clothes. He liked neatness and order, and wanted it out of their bedroom.

He told her when she got home that he had “burnt it”. She knew he had a burn barrel on the property that he regularly used. He said that if he told her the truth, she would demand he would put it back. The fight occurred in front of the children. It ended when the mother smashed a clock belonging to the father. She also tried to smash a picture he owned. [ 48 ] Following the incident, the mother moved with the children to Iris Kirby House.

Under a 30-day safety plan from Child and Youth Services, she moved home to Glace Bay with the kids for 30 days. [ 49 ] When she and the children went to Glace Bay, the father feared that she would not return with their son. They talked regularly during this time. He admits that he agreed with the mother that she could put the house for sale upon her return. He said selling the house was one of the mother’s conditions to return to the marriage. He said he would have told her anything to get her to return with their son.

She also wanted him to attend the “Homewood” program in Ontario to deal with his controlling behaviors she believes were caused by PTSD from his childhood. The father is adamant he does not have PTSD. He was already seeing a counsellor, George Andrews. [ 50 ] After the February 8, 2017 incident, an investigation revealed the father was joking about having burnt the crib.

The parties reconciled long distance and by March 18, 2017, she and the children were back in Newfoundland living in the matrimonial home. [ 51 ] The mother, upon her return in March 2017, engaged 3% Realty and a contract was signed with this realtor to sell the house. The “for sale” sign went on the house and it was listed. It did not generate any interest as far as the mother knows.

The house had been for sale privately on Kijiji on two prior occasions since the mother had moved in and did not sell. [ 52 ] In the latter part of the relationship, the father noticed that the mother was now talking more to the girls’ father, J.K., on the phone. In retrospect, he believes they were attempting to reconcile. She said he was helping her and his two girls plan to leave the father as she needed help to escape the abusive situation. Both the mother and J.K. told me that they have never tried to reconcile. J.K. has a common-law spouse of three years. Their common goal is the happiness of the girls.

J.K. said he wanted his girls safe, looked after and away from the father. He traveled to Newfoundland to check on them. The mother had no car, so he bought her a used car. She also had no household supplies, so he bought those too. He is currently paying her legal fees. [ 53 ] Early 2018 was a particularly bad period between the parties. The father could not go on the property of the daycare provider. Access had to be arranged between third parties.

The father admits that in January 2018, when he perceived the mother as “playing hardball” over his access to A.K.M., he sent highly embarrassing sex filled texts (“sexts”), giving vivid details of their sex life, to her mother, father and ex-husband, J.K. He admits this was not his proudest moment. the mother’s position [ 54 ] The mother wants to move home to Glace Bay, Nova Scotia with the child, A.K.M.

She can live in her mother’s house and avail of extensive family support, both financial and with childcare. [ 55 ] I heard testimony from her mother, K., who told me that she owns and lives alone in a four-bedroom house with an in-law suite in Glace Bay. She is a widow. She is offering the four bedroom house to the mother and her children, and she will live in the in-law suite. She is offering to babysit while the mother finds work or goes to work. She offered to help her daughter financially with the move. She said that the school bus for the children stops at the end of her driveway.

Most of the mother’s extended family, including aunts, uncles and cousins, live in Glace Bay. The mother’s older son, D, also travels to Glace Bay from his home in Halifax. The mother has no family in Newfoundland. [ 56 ] The mother is already pre-approved in a “pool” for federal government jobs in the Glace Bay area as she is now internal to federal government competitions.

She believes she will have no difficulty securing a federal government position somewhere in that vicinity. [ 57 ] The mother said she is traumatized by her relationship with the father as he was psychologically, emotionally, financially and, at times, physically abusive. She cannot remain living here trying to co-parent with him. [ 58 ] With respect to finances, she told me that he always knew when her payday was and that she was financially responsible for a lot of their expenses. She produced bank records to show that she gave the father $2,000.00 for hoists for his garage on May 23, 2017.

On May 19, 2017, the father came into her work as he knew she had received child tax credit money. She agreed to give him $1,000.00 for the purchase of a dirt bike, purportedly for her daughter, J. While there is one photo of a J. by this bike, she has never been on it, not even one time. She also showed the money she took out to pay the daycare regularly as she carried this expense alone. [ 59 ] The mother also told me that she paid for the used Jaguar and Mercedes. She says these items were purchased to be fixed up by the father and re-sold for profit in Newfoundland.

She produced bank records to show that the monies came out of her severance, including the fact that more of her money was withheld for taxes, when she removed funds to purchase these vehicles. [ 60 ] The mother also told me that she paid for more than half of the repairs to the father’s home from the equity of her house sale in

Ontario. This included adding an oil furnace and a propane tank, and fixing the well from when it was deliberately dug up. She said thiswas done for the purpose of expediting the sale of the house, as their plan was to move and settle in New Brunswick. [61] The father still has the dirt bike, and the used Jaguar and Mercedes. She said he always claimed he had no money. This startedearly in the relationship during his December 2013 trip to Ontario. The mother said the father is very tight with money.

She queries hisability to financially support their son. [62] The mother maintains that, with or without her son A.K.M., she is moving to Glace Bay with the girls. She hopes the Courtwill not separate the siblings and let her son move with them. [63] The mother said she cannot stay here as she has no family, few friends, little supports and there are too many reminders of thecontrolling, abusive relationship with the father. She wants her children to grow up surrounded by a loving, supportive family. She saidthis family exists in Glace Bay, Nova Scotia.

She said her children will benefit from contact with a close, loving extended family in thearea. She has no difficulty facilitating both physical access and FaceTime or phone access with the father. [64] The mother said she hopes her son does not end up growing up here alone with the father. He would live next to grandparentswho do not acknowledge him, an uncle one kilometer away who, likewise, has never met him and does not have any relationship with thefather. She said this would be a horrible atmosphere, away from his siblings. She maintains that the father has few people in his life wholove him.

He has had no relationship with his daughter, N. He will not pursue nor acknowledge his son with P.B., even though thiswould be a brother for their son, A.K.M. [65] The mother seeks sole custody because she said it would be impossible for her to co-parent with the father. In addition to thefact that they cannot get along, she believes distance is a factor which should also mean sole custody to her. [66] The mother offers to remain in Glace Bay and not move from there without a further Court order.

This is to ease concerns ofthe father that her real intention is to return to Ontario and possibly reconcile with J.K. She said these thoughts are all part of hisparanoia due to his past trauma. The FATHER’S POSITION [67] The father does not believe his son should be allowed to leave Newfoundland. He said the mother always told him that judgeswill not separate siblings, so he claims she is saying she is moving with or without A.K.M. He believes she will stay here if A.K.M. hasto stay here.

He points out that she has a good job here. [68] He admits he always deals in cash and that his line 150 income is low, but, he is adamant A.K.M. would be well looked after ifleft in his care. He was not more specific than this about his income. The father told me that he handed the mother cash to buy the usedMercedes and Jaguar, and that they were never intended to be re-sold. He disputes her claim that she purchased these vehicles with herseverance, despite her bank records. [69] The father maintains that the parties always intended to live here. He denies that they ever intended to relocate to NewBrunswick.

He owns his own house and land outright, and operates his auto-body garage business on this property. He owns a car andhas no debts. He states that it would have been impossible for him to move. He claims her move to New Brunswick from Ontario wasintended to get “half-way” to Newfoundland and then work on J.K. to let her go the rest of the way to Newfoundland. [70] The father admits that there is an estrangement from his parents and brother. His position is that this should not be a factorregarding parenting of his son.

He has other family, such as an aunt, and many friends who frequently visit him. [71] The father agreed that his criminal record and history of violence with ex-partners is quite dated. He told me that it primarilyinvolved two partners that he kept returning to, despite the explosive nature of those relationships. He states that he now has the benefitof counselling with George Andrews. His last conviction in 2016 was for a theft of a small item from Costco and he pled guilty. [72] The father believes that the mother is trying to move to take A.K.M. away from him.

He said she has not lived in Glace Baysince she was a teenager and vowed she would never return there. He believes that she is trying to get to Nova Scotia and then leave togo the rest of the way to Ontario. He believes that she and J.K. have planned this move and that she is promising J.K. a reconciliation(this is denied by the mother and J.K.). He believes the mother had him charged criminally, got an Emergency Protection Order, paintedhim as violent and has orchestrated all of this with J.K. to go back to him in Ontario and take his son. [73] The father denies he was abusive to the mother.

He said she is saying whatever she has to, including laying assault charges onhim, in her plan to move and take his son away from him. [74] The father maintains that, no matter where A.K.M. is ordered to live, that joint custody be maintained. However, if the motherstill chooses to relocate and leave A.K.M. in Newfoundland, he should have ultimate decision making authority and prime residence. MOBILITY Applicable Law [75] As these parties were married, the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), in particular

section 16, is the applicablelegislation. The leading case in Canada on mobility is Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, 19 R.F.L. (4th)177. When one parent seeks to vary an existing custody order by moving with the child, this case sets out a two-stage inquiry to befollowed: The first step is to determine whether a material change in circumstances has occurred since the original custody order wasmade. Second, if there is a material change in circumstances, the Court should conduct a fresh inquiry into whether the variation sought

is in the child’s best interests, with no presumption in favour of the custodial parent. [ 76 ] Gordon goes on to say that, once a material change in circumstances has been established, the focus of the inquiry is what is in the child’s best interests. This is the only consideration. To achieve this goal, Gordon at paragraph 49 , lists the following factors to be considered: 49 The law can be summarized as follows: 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. 2.

If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect. 5. Each case turns on its own unique circumstances.

The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia : (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [ 77 ] I find this case can be distinguished from Gordon in that this is a de novo situation post-separation. There is no threshold requirement of demonstrating a material change in circumstances. The parties physically separated for the last time on December 20, 2017. She maintains the date of separation is November 17, 2018 while he claims it is January 2019. There have only been interim parenting orders in this case. Analysis

[78] I find it is in A.K.M.’s best interests that he be allowed to relocate to Glace Bay, Nova Scotia with his mother. I say this forseveral reasons. [79] Pursuant to the test in Gordon, the ultimate factor is what is in the child’s best interest. I will review this case in light of thefactors listed in Gordon.

Existing Custody Arrangement and Relationship between the Child and Custodial Parent; and Existing Access Arrangement and theRelationship between the Child and Access Parent [80] The child was born in New Brunswick in […] 2015 and lived solely with the mother until their move to Newfoundland on April1, 2015. From that time forward, the parties co-parented, except during periods of separation. During separation the child lived with themother and had access with the father.

Final physical separation occurred on December 20, 2017, at which time the child went to livewith the mother. [81] There were intervening interim orders regarding access in early 2018 when the break-up was fresh, conflict was high and otherrelated court proceedings were ongoing. On May 30, 2018, there was an interim custody order for shared parenting. Without reviewingall of these orders, I find that this period has no impact on this final decision. None of these interim orders, including the interim order ofMay 2018 for shared parenting, are final orders. [82] The Divorce Act,

section 17, deals with varying, rescinding or suspending custody orders (or support orders). As there are nofinal parenting orders, this is not a situation where

section 17 of the Divorce Act applies. In April 2018, the mother had already appliedfor mobility. The interim order for shared parenting was done knowing the mother was applying to move to Nova Scotia. [83] Our Court of Appeal in Pumphrey v. Pumphrey, (1997) (NL CA), 148 Nfld. & P.E.I.R. 340, 29 R.F.L.(4th) 283 (Nfld. C.A.) made clear that interim orders are without prejudice to a full and fair assessment of issues at trial. I find that thisis not a case where I need to consider if there has been a material change in circumstances. The request to relocate by the mother must beassessed as a fresh inquiry.

The considerations that apply in assessing this situation for mobility remain very similar. The Divorce Actsection 16 is applicable. It states as follows: 16

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an orderrespecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person,make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriagepending determination of the application under subsection (1).

(3) A person, other than a spouse, may not make an application under subsection (1) or (2) without leave of the court.

(4) The court may make an order under this

section granting custody of, or access to, any or all children of the marriage to any one ormore persons.

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to begiven information, as to the health, education and welfare of the child.

(6) The court may make an order under this

section for a definite or indefinite period or until the happening of a specified event and mayimpose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

(7) Without limiting the generality of subsection (6), the court may include in an order under this

section a term requiring any personwho has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty daysbefore the change or within such other period before the change as the court may specify, any person who is granted access to that childof the change, the time at which the change will be made and the new place of residence of the child.

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage asdetermined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct isrelevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall 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 and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [ 84 ] Gordon does state that the focus is on the best interests of the child, not the interests and rights of the parents. In essence, therefore, the ultimate test is what is in the child’s best interests. [ 85 ] Our Court of Appeal in Whalen v.

Whalen , 2005 NLCA 35 at paragraph 18 , emphasizes that the most thorough analysis of the best interests of the child will be achieved by a consideration of all relevant factors. While their comments relate to the test under the Children’s Law Act , R.S.N.L., 1990, c. C-13 , the overall principles are applicable here: 18 It is clear from a review of the two sets of factors that they are somewhat different, though not inconsistent. Where the Children's Law Act applies, the factors set out in section 31(2) must be considered.

However, where a parent seeks to relocate with the children of the marriage, the factors set out in the Gordon case are also properly considered in determining the best interests of the child. There will be some overlap between the lists and some factors will be irrelevant, depending on the particular circumstances. The most thorough analysis of the best interests of the child will be achieved by a consideration of all the relevant factors. The Views of the Child [ 86 ] One factor in Gordon , the views of the child, is not applicable here due to the young age of A.K.M.

The Custodial Parent’s Reasons for Moving [ 87 ] Clearly, the mother is not seeking to leave Newfoundland to deprive the father of A.K.M. She is leaving because there is nothing left here for her or the children. She was here solely because of the father. Once that relationship ended, she had no reason to be here. To make matters worse, this relationship slowly unraveled with great acrimony. She is very far from family.

She has little to no supports here and feels overwhelmed by her experiences from the marriage. [ 88 ] The test in Gordon dictates that the reason for the mother’s move is only relevant where it might impact her ability to meet the needs of the child. [ 89 ] The mother is seeking to start over in Glace Bay. Her plan to move there meets the needs of the child. She has a suitable home, financial support and family support. The mother also has good job prospects.

When I consider the income of each party, the child will certainly be on equal financial footing in Glace Bay with the mother as in Newfoundland with the father. I have sparse information about the father’s real income. The mother has real job prospects, stable housing and extended family support. Her plan to move is a good one (see Robinson v. Locke-Robinson , 2017 ONSC 4964 ). [ 90 ] I disagree with the father’s conclusion that the mother’s purpose for moving is to deprive him of A.K.M. The father has had a bad experience in the past with the mother of his oldest daughter, N.

He eventually lost contact with N due to the actions of his mother. While I understand this experience fuels his current concern, I do not believe the motivation of the mother is in this case is in bad faith. The mother has clearly outlined her reasons for the move. She has a proposed suitable access schedule. There is no basis to conclude that she is moving to deprive the father of A.K.M. [ 91 ] The parties knew that they never had a clear and final ability to live in Newfoundland.

They moved and spent most of their first year of marriage living in separate provinces because they knew there was no permission for the mother to relocate to Newfoundland with the girls. There was no order nor written agreement. The mother is a smart, savvy woman who knew to get a court order to enable her to move from Ontario to New Brunswick. There is no doubt that if she had J.K.’s agreement to move permanently to Newfoundland, she would have secured the move in a court order. A.K.M. was born in New Brunswick under these circumstances.

This is what both parties agreed to from the very start, i.e., that they may never be able to settle in Newfoundland as a family. [ 92 ] The mother cannot stand to stay here. She is moving to Glace Bay and has agreed that she would not leave that area without a further Court order. This location is relatively close to Newfoundland. [ 93 ] The issue raised by the father, being if the move is prohibited will the mother stay here, is known as the “double-bind” question in mobility cases (see Spencer v. Spencer , 2005 ABCA 262 ). This is not a question that I am prepared to consider. Our Court of Appeal in T.(N.) v.

P.(W.) , 2011 NLCA 47 , has clearly identified this issue as an inappropriate line of inquiry. Disruption to the Child Consequent on Removal from Family, Schools and the Communities he or she has come to Know [ 94 ] The child’s only family here, with whom he has a close relationship, is his father. The father is completely estranged from his parents, who live next door, and his only sibling, his brother, who lives one kilometer away. He has no contact with his daughter N. His relationship with his aunt is no longer that close, due to her personal circumstances in recent years.

Otherwise, he does have some loyal friends such as L.F.C. who testified. [ 95 ] I also have considered the tender age of A.K.M. He is currently four years old and likely very adaptive. He has not yet started school. He has not yet developed close friendships nor really appreciates his community. His close ties, by far, are to his parents and siblings. At this age, he is unlikely to feel a disruption to his community as he is too young to appreciate it. [ 96 ] In Glace Bay, A.K.M. has the benefit of a large, extended and loving family all around him.

He will get to know them as he grows up and goes to school there. This is a very suitable place for A.K.M. to develop and learn. All of this is of great long-term benefit to A.K.M. He will be raised with his siblings. He will occasionally see his older half-brother, D.

[ 97 ] I have no doubt that A.K.M. is close to his father and will miss him. A.K.M. will still have regular contact with his father via Skype or FaceTime and access periods. It is evident that they have a close bond which can be continued, despite the distance. The Desirability of Maximizing Contact between the Child and both Parents [ 98 ] While it is desirable to have maximum contact between the child and parents, it is not in A.K.M.’s best interest to be raised here alone if the mother and his siblings move to Glace Bay.

Being raised with siblings is very important. [ 99 ] I am satisfied that the mother will follow Court orders and maintain contact with the father. Her proposal, in this regard, is sensible. She maintained access and contact between the girls and their father, J.K., since separation. [ 100 ] I refer to the comments of Sheahan, J. in Wyatt v. Galway , 2016 NLTD(F) 36 at paragraph 39 wherein he said: …The child has enjoyed maximum time with both parents through variations of shared parenting since at least June 2015, if not before.

By all accounts, Greta has thrived under this arrangement, being showered with much love, affection and guidance. It is clear that both parents have played a big role in Greta's life and that she is closely bonded with each of them. Unfortunately, this state of affairs cannot continue in its current form.… [ 101 ] In this case, A.K.M. too is deeply loved by both of his parents. The reality is that parents sometimes move and day to day living arrangements must change. It is simply not possible to always maintain a shared parenting arrangement.

I believe the strong bond between A.K.M. and his father will continue. [ 102 ] Clearly, the father deeply loves his son. The father has proven himself to be a devoted, loving dad during this past year of shared parenting. The father is A.K.M’s father and must remain in that role for life. They will still be able to maintain a relationship through a set access schedule, as well as FaceTime, Skype and calls. Disruption to the Child of a Change in Custody [ 103 ] These parties have only been separated just over a year. There is no real status quo here regarding parenting. No permanent order exists regarding custody.

My decision regarding custody is really the first final decision post separation. I intend to minimize impact on the child as outlined in the next section. (see also: Reeves v. Brand , 2017 ONSC 2306 ). sole CUSTODY VERSUS joint custody Applicable Law [ 104 ]

Section 16 of the Divorce Act , is the governing legislation regarding custody and access. Analysis [ 105 ] I have decided that joint custody is appropriate in this case. The mother shall have primary care of A.K.M. [ 106 ] During the past year the father has successfully parented A.K.M., alone, on a shared basis. He is interested in and involved in every aspect of his son’s life. This involvement by the father should continue. [ 107 ] Despite conflict between the parties, I feel it is appropriate that both parties have a say in major decisions regarding the child.

I believe the parents can communicate regarding important issues about their son. They have negotiated some changes to access, outside of Court, during the past year. It is in A.K.M.’s best interest to ensure that the father is always a part of the son’s life. [ 108 ] Despite living in separate provinces this situation is one where joint custody can easily occur and is appropriate. [ 109 ] The father testified that the mother tried to repeatedly limit J.K.’s FaceTime and phone access with the girls.

J.K. testified to this and said that his FaceTime access to the girls did encounter some issues and the mother sometimes made it difficult for him to get his FaceTime access once they moved to Newfoundland. He did get all his physical access periods. However, J.K. did indicate that these FaceTime access issues eventually resolved. J.K. now blames the father as the cause of the mother thwarting his FaceTime access.

He believes she did not want him to know how bad things were with the father, so she curtailed his FaceTime access. [ 110 ] I need both parents to know that they are both to be equally involved in the future of this child. FaceTime or Skype access must occur. It is in the child’s best interest for both parents to have a say in major decisions regarding the child. The father should know all of the child’s treating physicians, and have access to all medical and school records. The father must be a part of all major decisions. His physical access must also occur.

PARENTING ARRANGEMENT [ 111 ] I recognize that the father is currently on probation to have no contact with the mother for approximately six more months. I order that, during this time, communication regarding the child shall take place through either counsel or an acceptable third party. [ 112 ] Once the probation period expires, I order that both parties maintain an email address for communication purposes, unless they both agree to subscribe to a parenting app. If they prefer, and both agree, text messaging may be used for this purpose.

They both have to keep each other advised if they change their email address or cell phone numbers. They shall immediately advise each other of any medical, schooling or major concerns regarding the child while in their care. Since the mother shall have primary residence of the child, she is to keep the father updated through email of major issues concerning the life of the child. All communication is to be respectful and child focused. [ 113 ] When the child is in the care of one parent, the non-custodial parent shall have daily FaceTime or Skype access. This access shall

occur between 7:00-7:30 p.m. Newfoundland time each evening, unless the parties agree, in writing, to change the time. Should the FaceTime or Skype access fail, there shall be a telephone call between the child and the non-custodial parent. [ 114 ] Both parties will keep each other advised of their street and mailing addresses, as well as their telephone numbers. The parties shall use telephone calls in the case of emergency or if they need to talk about their son.

Both parties shall be allowed to mail or courier gifts, packages or letters to the child. [ 115 ] Both parties shall be required to sign a passport application for the child should either party request a passport. The mother shall keep the passport but must provide a photocopy to the father within 10 days of issuance. Should either party wish to take the child on a vacation during their parenting time, they shall provide a flight or similar itinerary to the other parent including the location, hotels or places that they are staying, as well as addresses and contact information.

If the father travels with the child and needs the passport, the mother shall ensure it is delivered to him at least seven days in advance of any travel.

If either party requires a letter to be able to travel, the other party shall sign this document and such consent shall not be unreasonably withheld. [ 116 ] Neither parent shall talk in a disparaging or negative manner about the other parent, the other parent’s partner (if applicable) or family members, nor will they allow or encourage another person to do so in the presence of A.K.M. [ 117 ] The current shared parenting arrangement in the interim order shall continue until the end of the Newfoundland school year. From June 25, 2019 until Friday, July 31, 2019, the father shall have access.

After that time, the mother shall be permitted to take A.K.M. and relocate to Glace Bay, Nova Scotia. [ 118 ] A.K.M. does not start kindergarten until September 2020. Therefore, the father shall have two extra extended access periods for one year only. This first period is from October 15, 2019 until November 23, 2019. The second period is from March 18, 2020 - April 15, 2020. This April period includes Easter 2020. These are one-time only access periods available to the father, assuming he can fund the costs of transportation for this access. He must do all actual transportation.

These access periods cannot be used to reduce child support. Should the father not be able to afford these access periods, he does not have to avail of them. [ 119 ] The father shall have access again from June 25, 2020 to July 31, 2020. This is the father’s summer access for 2020 only. [ 120 ] On an ongoing basis commencing in 2020, the father shall have access for Christmas on even numbered years and the mother shall have access on odd numbered years. On even numbered years, the father shall pick up the child on the day that school finishes and return the child to the mother on the day before school commences.

On odd numbered years, the child will remain with the mother for Christmas. The father shall have FaceTime or Skype access on Christmas Day and Boxing Day of odd numbered years at 3:00 p.m. Newfoundland time. The mother shall have the same access on even numbered years. Alternatively, if the parties agree, they can share one week of every Christmas break.

Skype or FaceTime access would still apply. [ 121 ] With respect to Easter holidays or March break, depending on when this occurs with the school that the child attends, the father shall have access during this period in odd numbered years and the mother shall have access in even numbered years.

This commences in 2021 as the father has the child for around this period in 2020. [ 122 ] With respect to summer holidays for the summer of 2021 and going forward, the father shall get five weeks consecutive and shall email the mother with the dates that he wishes to have these five weeks consecutive, no later than June 1, 2021 and June 1 of each thereafter. The father shall have his first choice of summer access times in odd numbered years and the mother shall have first choice in even numbered years.

In every year, the father shall have five consecutive or continuous weeks of summer access. [ 123 ] If the father plans to visit Nova Scotia at any time, he shall have reasonable access to A.K.M. with reasonable notice of at least five days to the mother. [ 124 ] The child may be transported by either car, plane or other agreeable means. Details shall be arranged, via email, between the parties.

The exact locations and times for drop-off and pick-ups shall be decided and communicated between the parties in advance in emails. [ 125 ] I order that the mother shall not move the child from the Glace Bay, or immediate area of Glace Bay, without either the father’s prior written consent or further order of the Court of competent jurisdiction. [ 126 ] Should the child, A.K.M., wish to contact the other parent not then having care of him by telephone, video, email or text, this shall be permitted by the parent having care of A.K.M. [ 127 ] All transfers of the child shall be peaceful and child focused.

COSTS [ 128 ] Each party shall bear their own costs. _____________________________ ____ Jane M. Fitzpatrick

Justice