ZTS Applicant And: JMS Respondent Corrected Judgment: The text of the original judgment was corrected on July 29, 2019 v. a description of the correction is appended., 2019 NLSC 137

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : ZTS v. JMS , 2019 NLSC 137 Date : July 17, 2019 Docket : 201806G0117 Between: ZTS Applicant And: JMS Respondent Corrected Judgment: The text of the original judgment was corrected on July 29, 2019 and a description of the correction is appended. Before: Justice Katherine O'Brien Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: June 12, 2019 Appearances: Nancy McKillop Appearing on behalf of the Applicant JMS Appearing on his own Behalf Authorities Cited:

CASES CONSIDERED: Bateman v. Bateman, 2016 NLCA 55; Gordon v. Goertz, (SCC), [1996] 2 SCR 27, 134D.L.R. (4th) 321; P.(D.) v. B.(R.), 2007 PESCAD 25; Willick v. Willick, (SCC), [1994] 3 SCR 670, 119 D.L.R. (4th) 405 REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] This is an Interim Application for relocation of H and R (twins, age 7) and J (age 4) from Fortune to Marystown, Newfoundlandand Labrador. The Interim Application has been brought by their mother, ZTS, who at the time of making the Application was living inMarystown and working in Burin as a registered nurse.

The boys’ father, JMS, has opposed the Application. He is a pipefitter whocurrently lives in Fortune. Due to the nature of his work, he regularly has to commute long distances for employment, sometimes out ofprovince. [2] I am denying ZTS’s Interim Application for relocation of the children. My reasons follow. Background [3] ZTS and JMS began living together in 2009 and married in 2012. They separated on February 10, 2017.

They have threechildren together: H and R (twins, age 7) and J (age 4). [4] ZTS and JMS signed a Separation Agreement dated March 6, 2018, which was filed with the Court. [5] On October 2, 2018, ZTS filed an Originating Application seeking enforcement of the Separation Agreement, includingsignificant arrears of child support. [6] Just days after ZTS’s Originating Application was filed, on October 8, 2018, JMS filed an Originating Application forVariation, seeking variation of parenting to a 50/50 arrangement, termination of child support, forgiveness of child support arrears andclaiming undue hardship.

JMS is seeking a variation from the terms of the Separation Agreement. [7] The Separation Agreement gave joint custody and equal decision making to both parties. It also stated: The Wife and Husband further acknowledge and agree that the Children shall reside primarily with the Wife and the Husband shallexercise access to the Children based on the Husband’s work

schedule as well as the schedules of the Children. More specifically, theHusband shall exercise access to the Child [sic] for the approximate seven to nine day period when he is home from working offshorewhereby the Husband shall pick the Children up from the Wife one day after his return from Alberta and the Husband shall return theChildren to the Wife one day prior to his return to working in Alberta. [8] At the time of separation, ZTS was living in Fortune with the children and commuting to work in Marystown working 8-hourshifts, 5 days a week.

Since September 2018, ZTS has been working in Burin, doing 12-hour shifts on a rotating basis, with 7 shifts per14 day period. [9] At some point after separation, I was not provided with the date, ZTS relocated to Marystown where she began living with herthen-partner AW and his two children from a previous relationship. ZTS sold the home that she had in Fortune, which had been theparties’ matrimonial home, to her mother and stepfather. [10] When H, R and J were with their mother during this period, they stayed in Marystown in the same house as AW and hischildren.

Although JMS knew about ZTS new living arrangements, he would not agree to the twins relocating from their school inFortune. As a result, the twins continued to go to school in Fortune and the children commuted regularly between the two communities.While ZTS was at work, the children were regularly cared for by JMS or other family members in Fortune. [11] Sometime between the filing of the present Interim Application and the hearing date, ZTS and AW broke up. ZTS returned toFortune with the children and took up residence in the former matrimonial home.

She testified that her parents have kept this house forher, her sister and stepsisters to use but to date ZTS has been the only one to use it. ZTS was living in this house with the children at thetime of the hearing. [12] Since separation, JMS has lived in the same house as his parents in Fortune, which is walking distance from the formermatrimonial home. JMS has had a couple of different jobs since separation. At the time of separation, he was working in Alberta.

He waslaid off from that position in early summer 2018 due to a downturn in the industry, and he then found work in Long Harbour,Newfoundland and Labrador. He left that employment prior to Christmas 2018 for stress leave. He currently has prospects ofemployment again in Alberta. That employment would have a two-week on, two-week off rotation. [13] While JMS has been without employment, he has spent more time with the children, caring for them in Fortune either where helives with his parents or at his current girlfriend’s house where the children have sleepovers. His girlfriend has young children also.

[14] There is an approximately 40 minute drive between Fortune and Marystown. H and R are school age and J will startkindergarten in the fall, and thus the community in which they reside will be the community in which they go to school. [15] Despite ending her relationship with AW, ZTS intends to return to live in Marystown. She does not have a house there at presentbut her intention is to look for one. She says her parents and grandparents will co-sign for a loan to enable her to get housing. On re-examination, ZTS’s lawyer asked her if she intended to have a place in Marystown before September.

ZTS replied that she wouldcertainly try to obtain adequate housing by September but she was unsure if that would be possible. Issues [16] The issue to be determined is whether the children should be relocated from Fortune to Marystown on an interim basis. ANALYSIS Considerations for an Interim Application on Relocation [17] In Bateman v. Bateman, 2016 NLCA 55, the Newfoundland and Labrador Court of Appeal observed that applications forrelocating children on an interim basis require the court to balance two sometimes-competing goals. On the one hand, the leading caseon relocation, Gordon v.

Goertz, (SCC), [1996] 2 SCR 27, 134 D.L.R. (4th) 32, requires the court to conduct a “fulland sensitive inquiry” into the best interest of the children. On the other hand, interim orders are intended to provide temporary solutionsand they should proceed on affidavit evidence whenever possible. [18] In order to strike the appropriate balance, the Court of Appeal in Bateman, has instructed me not to vary the custodyarrangement in place prior to trial unless there are compelling reasons to do so. The Prince Edward Island Court of Appeal explained thereasoning for this in P.(D.) v.

B.(R.), 2007 PESCAD 25, at paragraph 27: 27 Where parties apply for the interim custody of children, the primary concern for the court is to assess what is in the best interestsof the children having regard to their condition, means, needs and other circumstances at the time of the motion. The most fundamentalprinciple underlying this assessment is the need to maintain some semblance of stability in the lives of the children before a trial can beheld to consider the making of a permanent custody and access order.

Therefore, the status quo situation to which children have becomeaccustomed, either before or after the separation, should be disturbed only when there are compelling reasons to do so. [19] The benefit of maintaining stability in the lives of H, R and J prior to a full trial on the issue of where they should livepermanently is an important consideration in determining their best interests. Material Change in Circumstances [20] As instructed by the Supreme Court of Canada in Gordon, the first consideration for a relocation application is whether therehas been a material change of circumstances.

A material change of circumstances is a change that, if known at the time, would likelyhave resulted in different terms. If the matter, which is relied on as constituting a change, was known at the relevant time it thus cannotbe relied on as the basis for variation. See Willick v. Willick, (SCC), [1994] 3 SCR 670, 119 D.L.R. (4th) 405. [21] ZTS points to September 2018, when she took a new work position requiring 12-hour shifts on a rotating basis, with 7 shifts per14 day period, as being a material change in circumstances.

It is not that the place of her work changed, as she was working inMarystown prior to this, but, rather, that her

schedule changed. [22] The change in her

schedule resulted in ZTS traveling between Marystown and Fortune only 7 days out of 14 instead of the 10days out of 14 that she had been previously. However, her days were longer and not as regular as they had been under her prior 5 days aweek, 8 hours a day arrangement. [23] ZTS also points to JMS’s period of unemployment and his inability to pay child support as material changes. [24] I do not consider JMS’s failure to pay child support as a material change of circumstances relevant to relocation.

Child supportand whether any is owed retroactively will be matters at issue for trial. [25] I do consider JMS’s long period of unemployment, his ability to parent the children for longer periods of time and ZTS’sdecision to relocate to Marystown due to her work

schedule change as material changes that, if present at the time of the separationagreement, would likely have resulted in a different custody and access arrangement. Bests Interests of the Children [26] According to Gordon, to assess the merits of the application to change the children’s place of residence, I must inquire into theirbest interests considering: (

a) the existing custody and access arrangement and relationships between the children and their parent; (

b) the desirability of maximizing contact between the children and both parents; (

c) disruption to the children of a change in custody; (

d) disruption to the children consequent on removal from family, schools, and the community they have come to know; and (

e) parenting plans for the children in each of Fortune and Marystown. [27] ZTS’s reason for moving would only be a consideration if this was an exceptional case where it was relevant to her ability to

meet the needs of the children. I do not find that it is and I have not considered it. [ 28 ] Likewise, the wishes of the children would be appropriate if I considered eliciting them appropriate. I do not, given their young ages. [ 29 ] The "maximum contact" principle is mandatory but not absolute and I am only obliged to respect it to the extent that such contact is consistent with the children’s best interests. Parental conduct does not enter the analysis unless it relates to the ability of the parent to meet the needs of the children.

In the end, the importance of the children remaining with the parent to whose custody they have become accustomed in the new location must be weighed against the continuance of full contact with the children’s access parent, their extended family and community. All decisions as to custody and access must be made in the best interests of children, assessed from a child-centred perspective. Existing Custody and Access

Schedule and Relationships [ 30 ] The Separation Agreement gave the parties joint custody and joint decision making for the children. ZTS’s residence was the primary residence for the children and JMS exercised access when he was home from working offshore. At the time of the Separation Agreement, he worked a two-week on, two-week off schedule, though his days off would have been less than a full two-week period due to travel time. When JMS was working the two-week rotation, the parties kept to this schedule. [ 31 ] When JMS lost his employment, he exercised much greater access with the children.

For at least a two-month period the children were with him more than with ZTS and she waived child support for that period. JMS maximized his time with the children when he was home from work and ZTS facilitated this. [ 32 ] It is clear to me that H, R and J have the benefit of two loving parents who co-parent well together. Both parents acknowledge this and it is a credit to them. While there may be minor differences in parenting styles, JMS and ZTS respect each other as parents and are very capable of making parenting decisions together.

The boys enjoy strong relationships with both of them. [ 33 ] Until her relocation to Marystown, ZTS’s home was the primary residence of the children. Once she moved, the children spent more time with their father and with grandparents but still spent substantial time with her and her then-partner and his children in Marystown. ZTS’s Interim Application describes in some detail the living arrangements she had for the children in Marystown with the twins sharing a room together and J sharing a room with AW’s youngest son.

As noted, this arrangement came to an end and the children returned to what had been their former home in Fortune with their mother. They continued to spend substantial time with their father and grandparents. [ 34 ] The father lives with the children on the top floor of his parents’ home. They have dedicated space within the house with the twins sharing a room and J being in another room. JMS hopes to purchase the full house from his parents soon. [ 35 ] The existing custody and access arrangement has both parents spending substantial time with the children and being well able to provide for their needs.

Their primary residence has been with their mother and their home community has been Fortune where they have extended family. The boys spend significant time, including regular sleepovers, with both paternal and maternal grandparents in Fortune. The twins go to school in Fortune. Disruption to the Children [ 36 ] Disruption to the children is a very important consideration in this case. In addition to the inevitable disruption caused by the breakdown of their parents’ marriage, H, R and J have already had a significant disruption to their lives that while anticipated to be long- term, was ultimately short-lived.

They went from living in the house that they had lived in with both parents and then with their mother, to living at least part-time in a blended family situation in Marystown. This had to have been a significant adjustment for them. Upon the breakup of ZTS and AW, they returned back to what they no doubt considered their old house. Now ZTS seeks to move them again to Marystown and enroll them in school there. She does not have housing secured and it is likely that she will not before the new school year begins.

CONCLUSION [ 37 ] As this is an Interim Application, I should not vary the children’s location unless there are compelling reasons to do so and I must seek to maintain stability for them prior to trial. I do not find compelling reasons to relocate the children at this time. Let me elaborate. [ 38 ] The children’s ties to Fortune and to their family (i.e. grandparents, aunts, uncles, and cousins) are important sources of stability and consistency for them. For the twins, the school they have known and the classmates they may expect to have again in September are also a source of stability and consistency.

I find that it is in their best interests to maintain Fortune as their home community during the interim period until the matter can be canvassed in more detail at trial. [ 39 ] To allow a relocation at this time to Marystown would introduce additional disruption to their lives. Their living situation would be unknown until ZTS finds a house; there would be a change in schools for R and H; ZTS would have less family support and be unable to get them to extracurricular activities consistently. There would also be change to their afterschool care.

Currently they are cared for by family members and are able to walk to and from school and take themselves to the park and so on. A move to Marystown would mean afterschool care provided by third parties. [ 40 ] Regardless of their community of residence, if ZTS proceeds to relocate to Marystown again, the boys will have to travel back and forth between the communities regularly to spend time with both parents. [ 41 ] The above are the reasons for my decision, however, I want to mention some things that I did not consider.

[ 42 ] Although I heard evidence on the benefits of the school in Marystown and the of additional extracurricular activities offered there over Fortune, I have not taken this into consideration. I would need significantly more evidence before making any finding other than that both communities have good schools and many different activities to offer children. [ 43 ] Likewise, I have not considered the benefits of structured afterschool care provided by third parties to less structured afterschool care provided by family members. I only had limited evidence before me on these alternatives.

From that, I can only conclude that each alternative has advantages and disadvantages, not that one is preferable to the other. COSTS [ 44 ] Each party will bear their own costs of this Application. [ 45 ] While there is a presumption that a successful party is entitled to costs of an application, I find that both parties throughout the proceeding were reasonable, acted in good faith, and in the best interests of the children and that each bearing their own costs is appropriate. [ 46 ] ZTS argued that JMS should pay her costs because he has caused unnecessary delay and costs to her.

While JMS was delayed in some filings in this matter, that delay was not in relation to this application. ZTS did not seek to relocate the children in her Originating Application despite the fact that she had already started her new work

schedule when the Originating Application was filed. Although she raised the issue with JMS earlier, she did not file this Interim Application until April 29, 2019. The matter proceeded fairly swiftly to hearing from then. Disposition [ 47 ] ZTS’s Interim Application for relocation of the children is dismissed with no order as to costs. _____________________________ Katherine O'Brien Justice APPENDIX Corrections made on July 29, 2019: 1. Information that could potentially identify the Applicant or Respondent or other parties was removed.