James Harnett (appellant) v. Candace Clements (respondent) (19/23) Indexed As: Harnett v. Clements 2019 NLCA 53 4 C.A.N.L.R. 736 Court of Appeal of Newfoundland and Labrador Welsh, Goodridge and Butler JJ.A. August 26, 2019

Summary: Ms. Clements applied to relocate to Alberta with the parties’ only child. The trial judge concluded that it was in the child’s best interests to relocate with his mother, to whom the judge granted sole custody. Mr. Harnett was granted access during Christmas and summer holidays. Mr. Harnett was ordered to pay all travel costs until Ms. Clements had established employment in Alberta, at which time Mr. Harnett could apply to have the travel costs shared between the parties. Mr.

Harnett appealed the decision of the trial judge on the basis that the judge erred in determining that relocation was in the best interests of the child, and in imposing terms of access that were not supported by the evidence. Held: Appeal allowed, in part. Butler J.A. (Welsh and Goodridge JJ.A. concurring): The trial judge did not err in his determination of the mobility issue. He applied the correct test and his conclusions on the issue of relocation were supported by the evidence before him.

The weight the judge ascribed to each of the factors is an exercise of discretion that is entitled to deference (paragraphs 10–42). The trial judge erred in ordering that the costs of travel, subject to an application for shared expenses once Ms. Clements obtained employment, be borne by Mr. Harnett. The judge did not explain why he ordered Mr. Harnett to bear the costs, nor did he reference Mr. Harnett’s financial circumstances (paragraphs 43-46). Other than Ms. Clements’ relocation plan, the judge did not refer to any evidence to support his conclusions on the terms of access.

Specifically, he did not refer to how the terms of access would be consistent with the child’s best interests, how the terms would serve to maximize contact with Mr. Harnett, or how the terms would reduce the risk that Ms. Clements would not promote a relationship between the child and his father. Failing to refer to evidence to support his conclusions on the terms of access was a reviewable error of the trial judge that allowed the Court to reconsider the evidence (paragraphs 47-48). Upon reconsideration of the evidence with respect to Ms. Clement’s past conduct, there was a risk that Ms.

Clements would not accommodate the interests of both the child and Mr. Harnett once relocated. This should have been addressed by the judge in the terms of access (paragraphs 49-53). The evidence, as a whole, supported a characterization of the parties’ relationship as high conflict. The judge was required to ensure that the terms of access were as precise as possible to avoid opportunities for disagreement and frustration between the parties. The access terms imposed by the trial judge did not sufficiently insulate the child from parental conflict (paragraphs 54-58). In her submissions on appeal, Ms.

Clements indicated her willingness to cover half the costs of travel and agreed to more specific post- relocation access terms. In light of these submissions, the Court set aside the access terms imposed by the trial judge and substituted more specific terms of access to address the concern that Ms. Clements would not foster the father-son relationship. The Court also

ordered that the travel costs be shared between the parties. Given the mixed success on appeal, no order was made as to costs(paragraphs 59-66). Cases cited: Whalen v. Whalen, 2005 NLCA 35 Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 SCR 1014 Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 Shea v. Shea, 2017 NLTD(F) 19 P.R.H. v. M.E.L., 2009 NBCA 18 K.R. v. J.K., 2018 SKCA 35 J.H. v. T.H., 2017 NBCA 7 Statutes considered: Children’s Law Act, RSNL 1990, c. C-13 Divorce Act, RSC 1985, c. 3 (2nd Supp.) Counsel: Appearing on his own behalf, the appellant; Marilyn A. Pendergast, for the respondent.

The appeal was heard on July 17, 2019 before Welsh, Goodridge and Butler JJ.A. The following judgment was filed on August 26, 2019 by Butler J.A. for the Court. ______________________________________________________________ Butler J.A.: INTRODUCTION [1] Mr. Harnett appeals the decision of a Justice of the Supreme Court of Newfoundland and Labrador, Family Division, permittingMs. Clements to relocate the parties’ son to Alberta.

The mother was awarded sole custody and the father was given access rights to beexercised at the father’s expense, but the travel costs were subject to variation if and when the mother obtained work. The Standard of Review [2] The scope of appellate review applicable to a mobility decision was confirmed by this Court in Whalen v. Whalen, 2005 NLCA35. At paragraph 12, citing Van de Perre v.

Edwards, 2001 SCC 60, [2001] 2 SCR 1014, this Court explained that the onus is on theappellant to establish either: ● A material error ● A serious misapprehension of the evidence; or ● An error of law. [3] This Court recognizes that “[b]ecause of its fact-based and discretionary nature, trial judges must be given considerabledeference by appellate courts when” family law cases involving custody “are reviewed”. The deferential standard promotes finality infamily law litigation and recognizes the importance of the appreciation of the facts by the trial judge (Van de Perre, at paras. 11-12).

The Decision under Appeal [4] In the within case the trial judge heard the evidence of 12 witnesses over 5 days in November 2018 and rendered his decision

expeditiously 2 months later on January 29, 2019 (2019 NLSC 19). At issue was the mother’s request to relocate with the parties’ onlybiological child, a boy now aged 10 (“C”) to Alberta where the couple had originally resided together for approximately 3 years (2004 –2007) prior to the child’s birth in Newfoundland and Labrador in 2009. [5] The unmarried parties separated in 2017 but the evidence supported the conclusion that their relationship continued for sometime thereafter.

As reconciliation was attempted, there was some volatility. [6] A significant event occurred between the parties in August 2017 which ultimately resulted in a charge of assault being laidagainst the father. This charge led Child, Youth and Family services (“CYS”) to require supervision of the father’s access whichoccurred generally on Wednesdays and Saturdays. The supervision was initially provided by Harnett extended family members and laterin 2018, by Mr. Harnett’s girlfriend.

Access was eventually increased to three days a week. [7] Following a trial in Provincial Court on February 15, 2018 the judge concluded that the assault charge was without merit andthat it had in fact been Ms. Clements who had been the aggressor on the occasion in question. The CYS social worker assigned to thefamily recommended the lifting of supervision in August 2018 but it did not occur.

The parenting trial was heard in November 2018 anda decision was filed in January 2019 but for reasons unexplained, access remained supervised until April 2019. [8] The trial judge concluded that it was in the child’s best interests to relocate to Alberta with his mother to whom he granted solecustody. He awarded the father access for a week each Christmas and a month each summer with travel costs to be borne by the fatheralthough he permitted Mr. Harnett to apply for an order to have such costs shared once Ms. Clements had established employment inAlberta. ISSUES [9] The issues to be determined are therefore: 1.

Did the trial judge commit a reviewable error on the question of mobility? 2. Did the trial judge commit a reviewable error on the parenting terms that would apply once the child relocated? 3. If error is demonstrated, what is the appropriate relief? Issue 1 – Did the trial judge commit a reviewable error on the question of mobility? [10] Mr. Harnett suggests that the trial judge’s conclusions on the issues of both mobility and the terms of access applicable afterrelocation, represent a serious misapprehension of the evidence and thus a palpable and overriding error.

As specifics of this allegedreviewable error, Mr. Harnett references evidence that supported that: 1. the mother was not (as the trial judge concluded) the child’s primary caregiver; 2. the father’s access to his son had significantly altered as a result of the “false accusations” which had led to supervised access; and 3. the social workers’ testimony did not support relocation as being in the child’s best interests. [11] On the issue of mobility, there is no dispute that the trial judge applied the correct law.

Since the parents were not married, thematter fell to be determined under the provisions of the Children’s Law Act, RSNL 1990, c. C-13 and in particular section 31(2) thereof. [12] In addition, the trial judge cited and applied the factors approved by the Supreme Court of Canada in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 as relevant considerations to the question of mobility of a child with the best interests of the childbeing the paramount and overriding consideration.

While Gordon was decided under the Divorce Act, RSC 1985, c. 3 (2nd Supp.), it isnot disputed that these factors are nevertheless properly considered when mobility is an issue under the Children’s Law Act. [13] Finally, no challenge was made to the trial judge’s conclusion that a material change in circumstances had occurred since theexisting parent arrangement had been put in place.

The trial judge specifically referenced the availability of family support andemployment opportunities for the mother in western Canada and that the child’s half-sister had been living in Alberta since the summerof 2017. [14] The trial judge’s consideration of each of the Gordon factors (recognized as having some overlap with the legislative factors) andthe conclusions he reached on each factor were addressed at paragraphs 23 – 81 of his decision. Existing arrangements for parenting [15] The trial judge concluded that Ms.

Clements has been the child’s primary caregiver for his entire life, both before and afterseparation. [16] On the division of parenting responsibilities between Mr. Harnett and Ms. Clements prior to separation, the evidence as a wholesupported the conclusion that Mr. Harnett’s employment within this Province often saw him driving long haul trucks which would takehim away from the St. John’s area for several days at a time. It also supported the conclusion that Ms.

Clements worked outside thehome only sporadically and that it was she who took responsibility for taking the child to any medical or dental appointments andattending parent – teacher interviews, school concerts and events. [17] Thus while Mr. Harnett suggests that prior to the child attending school, their son was often cared for by his paternalgrandparents, there was no evidence to contradict the trial judge’s characterization of Ms. Clements as playing the key role in meetingthe child’s basic needs on a day to day basis.

[ 18 ] Nor was there any error in the trial judge’s description of the access that Mr. Harnett had exercised since the separation. In the fifteen months prior to the trial, Ms. Clements played the role of primary caregiver in large part because Mr. Harnett’s access was limited and supervised. Wishes of the primary caregiver [ 19 ] When the parties met in Alberta, Ms. Clements was the mother of a 16 month old daughter (“J”) who was born in 2003. Mr. Harnett assumed a parenting role to this little girl from 2004 to 2007 and when the parties relocated to this Province in 2007 she came with them.

This familial relationship continued until and after C was born in 2009. J is therefore a half-sister to C and the evidence established that, despite an 8 year age difference between the two, they have had a very close relationship and bond. [ 20 ] For many years prior to trial, J spent significant time every summer in Alberta where both Ms. Clements and Mr. Harnett have family and friends, most significantly, Ms. Clements’ mother and her new husband. In the summer of 2016 C went to Alberta for the first time and stayed a month.

The evidence as a whole allowed the trial judge to conclude that C had an important relationship with his extended maternal family in Alberta. [ 21 ] In the summer of 2017 after the assault charge was laid against Mr. Harnett, Ms. Clements went to Alberta on vacation with both children with Mr. Harnett’s consent. When the father learned that C had been enrolled in school there, he made application for his son’s return by way of an Emergency Protection Order. Once served, Ms. Clements did not await the hearing date but instead immediately returned with C to Newfoundland and Labrador.

Her daughter, J who was uncomfortable returning to this Province because of a sexual assault charge made against her natural father who resides here, remained in Alberta with her maternal grandparents. Since that time, the evidence supported the trial judge’s conclusion that J and C have remained in frequent telephone and electronic contact and both speak of missing each other. [ 22 ] As primary caregiver, the trial judge recognized that Ms. Clements’ view that her two children should be reunited, in a location that was familiar to them, where they had significant family support, should carry weight.

He also concluded that Ms. Clements’ primary reason for relocating was to be close to her mother and daughter and for better employment possibilities. [ 23 ] The trial judge’s conclusions on this factor were supported by the evidence before him, most significantly the testimony of Ms. Clements and J herself who testified by video conference. Ms. Clements’ employment opportunities were also supported by the evidence and in particular by a note from a former employer who described Ms. Clements as a hard worker who she was “anxious to have back”.

Relationship with both parents and their ability to provide care [ 24 ] Here, the trial judge referenced the testimony of several witnesses as well as affidavits filed by both parties relative to the respective accusations made by each parent against the other’s ability to provide appropriate care.

The text messages they exchanged over issues of C’s parenting in the months leading up to the trial were also placed before the trial judge and were replete with evidence of poor communication and lack of co-operation. [ 25 ] The trial judge concluded that neither party had been a model parent and gave particulars including the acknowledged drug use by both, and the evidence directed at providing a negative impression of the other. Respecting the conclusion of the Provincial Court judge (that Ms.

Clements had been the aggressor on the occasion earlier referenced), the trial judge concluded that this event ought not to be held against the father in assessing the “application to relocate to Alberta”. [ 26 ] The trial judge’s conclusion that difficulties in the parties’ relationship were causing the child stress serious enough to warrant referral was supported by the report of his guidance counsellor. On the other hand, the trial judge’s conclusion that Mr.

Harnett’s access had been positive and that there was no need for supervision was supported by the evidence as a whole and in particular by the objective testimony of two social workers, Terri Lynn Payne and Danielle Warford from CYS. Maximizing contact [ 27 ] On this factor, the trial judge acknowledged that while maximum contact with both parents was an objective, the best interests of the child may not support maximum contact with one parent where mobility is approved. [ 28 ] As noted in Shea v. Shea , 2017 NLTD(F) 19, “the maximum contact principle is not absolute” (para. 99).

Citing Gordon at paragraph 24 , “[t]he Act only obliges the judge to respect it to the extent that such contact is consistent with the child’s best interests …”. [ 29 ] There was no error in the trial judge’s statement of the law on this factor. Had he been satisfied that the child’s best interests would be served by continued close contact with his father, he recognized that this may preclude relocation to Alberta (para. 63).

Views of the child [ 30 ] The child’s views expressed to witnesses who testified were supportive of a relocation to Alberta but the trial judge noted evidence that supported C had been ‘coached’ (most likely by his mother) to express a desire to move to Alberta. [ 31 ] In addition, Mr. Harnett’s evidence had suggested reasons for these expressed views that would, in his opinion, require them to be discounted or rejected. Mr.

Harnett and his father testified that any nine year old boy who had enjoyed summer holidays in Alberta with regular outdoor activities (particularly boating) would express such a sentiment without consideration of the long term consequences of being away from his father, his father’s family and the disruption of school and playmates. [ 32 ] Nevertheless, in stating his conclusion on this factor, the trial judge referenced the uncontradicted evidence of witnesses for both parties that C has strong relationships with his maternal grandmother and her husband and misses J with whom he lived from birth until the fall of 2017.

[ 33 ] Finally, while it is not specified as a consideration under this factor, as previously noted, the trial judge was aware of the high conflict between C’s parents and the stress C was feeling. He also had J’s testimony that her life was “more stable in Alberta” and that she “doesn’t have to worry” there. This testimony supported the expressed views of the child. Disruption to the child [ 34 ] In this category, the trial judge described the multiple disruptions that C had endured since his parents separated.

He found C’s relationship with his mother and half-sister J as the two consistent influences in his day-to-day life and concluded that any arrangement that provided for the continued involvement of these two would be in C’s best interest. [ 35 ] Mr. Harnett suggests that this conclusion understates the positive parenting role he played not only in C’s life but in raising J who admitted in her testimony that Mr. Harnett “taught [her] everything” and had been “amazing” until they became estranged a few years ago. [ 36 ] In addition, Mr.

Harnett references the evidence of social workers Terri Lynn Payne and Danielle Warford who both considered that father and son had a positive relationship. [ 37 ] It is accurate that the father had never been absent from C’s life; in fact the trial judge recognized “the importance of the parenting role played” by Mr. Harnett (para. 78). Thus, the evidence which the father relies upon to support his position, was considered by the trial judge. The balancing exercise [ 38 ] In the

Summary

section of his decision, the trial judge conducted the balancing exercise required. During this exercise, a trial judge is entitled to give the weight he or she considers appropriate to the evidence presented on each of the relevant factors. [ 39 ] In this section, the trial judge summarized the evidence that favoured the move and balanced it against other evidence that did not support Ms. Clements’ position. He found the reunification of J and C with the additional familial support available in Alberta where Ms.

Clements had better employment prospects and the children would have less stress, was in the child’s best interest. [ 40 ] While the trial judge did not reference all the testimony in this portion of his decision (and specifically did not mention the social workers’ testimony), in preparing reasons in custody cases, it would be unreasonable to require a judge to discuss every piece of evidence ( Van de Perre , at para. 10 ).

Omissions in the reasons “will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. …” ( Van de Perre , at para. 15 ). “An omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion” ( Van de Perre , at para. 15 and Whalen , at para. 13 ). In this case, the trial judge addressed the evidence of the social workers at paras. 35-38 and explained to what degree their evidence had been of assistance.

Conclusion on Issue 1 [ 41 ] Returning now to Whalen , the trial judge therein had denied the appellant’s request to relocate to Ottawa with the children. This Court determined that in doing so, the trial judge had made several material errors, namely: failing to consider financial considerations in the proposed plan of the mother (para. 33); the standard applied when assessing the mother’s evidence on the quality of francophone education in St.

John’s (para. 36); and failing to identify a basis on which to conclude that the children’s lives would be seriously disrupted if access to their paternal grandparents was substantially decreased (para. 40). [ 42 ] Unlike Whalen , the trial judge in this matter committed no reviewable error in his determination of mobility. He applied the correct test and the conclusions he reached were supported by the evidence as a whole.

The weight ascribed to each of the factors he considered is a matter of the discretion of the trial judge who had the benefit of seeing and hearing from the parties and their witnesses directly and it is entitled to deference from this Court on review. Issue 2 – Did the trial judge commit a reviewable error on the parenting terms that would apply once the child relocated? Costs of travel [ 43 ] The trial judge ordered that the costs of travel (subject to application for sharing expenses once Ms. Clements obtained work) should be borne exclusively by Mr. Harnett. [ 44 ] As stated in P.R.H. v.

M.E.L. , 2009 NBCA 18 , at paragraph 18 : The general trend of the jurisprudence since Gordon v. Goertz has been to grant approval for a proposed move, so long as it is proposed in good faith and is not intended to frustrate the access parent’s relationship with the child. However, the relocating parent must generally also be willing to accommodate the interests of both the child and the access parent.

This will generally require a restructuring of access, with the relocating parent possibly incurring the increased costs of access in the new arrangement, sometimes by way of an alteration of the child support obligations. … [ 45 ] Costs of travel associated with access are not an enumerated “special or extraordinary” expense listed in s. 7(1) of this Province’s Child Support Guidelines Regulations , O.C. 98-067 or defined therein at s. 7(1.1). [ 46 ] Ms. Clements’ evidence had been that she had several jobs available to her and that she was prepared to split the travel costs equally.

The trial judge did not explain either why he imposed the full cost on Mr. Harnett (without alteration of child support obligations), or required that Mr. Harnett make a future application to address the travel costs. The trial judge made no reference to the financial circumstances of the father and whether he could realistically manage the equivalent of six return trips to Alberta annually given that the child could not fly unaccompanied. These omissions give “rise to the reasoned belief that the trial judge must have

forgotten or ignored the evidence in a way that affected his conclusion” on this term of access ( Van de Perre , at para. 15 ) and represents a reviewable error ( Whalen , at para. 33 ; K.R. v. J.K. , 2018 SKCA 35 , at paras. 101-108 ). Terms of access [ 47 ] Having concluded that mobility should be approved, the trial judge’s reasons on the terms of access to apply following relocation were restricted to three paragraphs as follows: [79] She has presented a relocation plan to the Court that, inevitably, means J.H.’s contact with [C] will be reduced.

However, there will be opportunity for significant summer and Christmas access. Ample opportunities for telephone and video access will also be ordered. In addition, J.H. has worked in Alberta in the past, and is familiar with that province. He may choose to travel on occasion to see his son there, or he might, in the future, seek employment there to increase his contact. [80] Given the practical difficulties arising from relocation to another province, I do not believe joint decision-making will be in the child’s best interests.

However, C.C. will have a duty to notify J.H. of any major decisions concerning the child, including those about health and education. [81] [C] is currently in school in St. John’s, and to minimize disruption to his schooling, he should not be relocated until the end of the school year. Accordingly, I will order that he not be relocated to Calgary before July 15, 2019. As a

schedule of access is already in place, as evidenced by the consent order from this Court dated October 19, 2017, those arrangements will remain until relocation takes place, unless varied by agreement between the parties, or by further order of the Court. [ 48 ] Other than the mother’s relocation plan, the trial judge did not refer to any evidence to support how the terms of access he concluded were appropriate:

a) would be consistent with the child’s best interests;

b) would serve to maximize contact with the father (in light of the relocation); or

c) reduce the risk that the mother would not promote a relationship with the father. This is a reviewable error that allows this Court to reconsider the evidence ( Van de Perre , at para. 15 ).

Reconsidering the evidence The mother’s conduct as it relates to access terms [ 49 ] In the earlier portion of his decision addressing mobility, the trial judge had acknowledged that the mother had taken C to Alberta with the father’s consent in the summer of 2017 but did not advise him that she had formed the intention to remain there and had enrolled C in school in Calgary. [ 50 ] In this same section, the trial judge also acknowledged a social worker’s report dated March 7, 2018 to the effect that “there was also suspicion about the potential of some of C’s responses being coached, for example his reluctance to answer any questions that had potential to implicate his mother in any wrongdoing” and a subsequent May 9, 2018 report which similarly concluded that “C is often not able to provide adequate information to support the allegation in full” (of Mr.

Harnett acting inappropriately) “and other parties who were present at the time of the reported incident do not corroborate the allegation, leading CYS to suspect that the reported information has been exaggerated to some extent or taken out of the appropriate context.” [ 51 ] Section 31(3) of the Children’s Law Act requires an assessment of a person’s past conduct “if the court thinks it is relevant to the person’s ability to act as a parent”. [ 52 ] Ms.

Clements’ past conduct was relevant to her parenting ability overall and specifically whether she would foster a relationship between the child and his father ( K.R. v. J.K. , at paras. 57-67 ). It should have been assessed by the trial judge and addressed in his establishment of access terms. [ 53 ] The evidence did not support a reasonable expectation that Ms. Clements would “accommodate the interests of both the child and the access parent”, once relocated in Alberta ( P.R.H. , at para. 18 ). Instead, the evidence supported the risk that, once in Alberta, Ms.

Clements could continue to have a negative impact upon C’s relationship with his father. The high degree of conflict as it relates to access terms [ 54 ] In the portion of his decision addressing mobility, the trial judge acknowledged both that the assault charge had been found to be without merit and that there was a history of hostile communication between the parties.

The evidence as a whole supported characterization of their relationship as high conflict. [ 55 ] The high degree of conflict between the parties required the trial judge to ensure that the terms of access were as precise as possible in order to avoid opportunities for disagreement and frustration which the evidence supported had created stress for the child. As stated in J.H. v. T.H. , 2017 NBCA 7 at paragraph 33 , in such circumstances, the court must be satisfied that “sufficient safeguards are in place so as to insulate the children from parental conflict.”

[ 56 ] The trial judge ordered that Mr. Harnett’s access would be limited to one month in the summer and one week at Christmas, with dates to be “arranged as agreed between the parties”. He approved telephone or video access at least twice weekly again, “at times to be agreed between them”. Contact information was to be provided by each parent to the other, neither parent was to make disparaging or negative comments in the presence of the child or make any effort that would have the effect of frustrating the parenting arrangements. Mr.

Harnett was permitted “reasonable access… with reasonable notice if and when he travels to Alberta” and if Ms. Clements were to return to this Province instead of remaining in Calgary, Mr. Harnett’s access was to continue “according to the existing arrangements”. [ 57 ] These terms fall short of sufficient safeguards to insulate the child from parental conflict. They ignored the key evidence referenced above which established the unlikelihood that the parents would “agree” on dates or times of Christmas or summer access, telephone or video contact.

The mere requirement that the mother not make negative comments in the presence of the child was insufficient to ensure promotion of a positive relationship between father and son and the terms of access in these circumstances should have served to maximize contact between father and son, in light of the distance between them. Conclusion on Issue 2 [ 58 ] The trial judge’s conclusion on the terms of access to apply post relocation, represents a reviewable error.

In fixing the costs of travel, the trial judge made no reference to the financial circumstances of the father, ignored the mother’s willingness to pay half the expenses and failed to explain why he imposed the full cost on Mr. Harnett. In ordering general terms, the trial judge made no assessment of the mother’s conduct, and provided no reasoning to support how the terms of access post relocation would:

a) be in the child’s best interests;

b) serve to maximize contact with the father; or

c) reduce the risk that the mother would not promote a relationship with the father. Issue 3 – What is the appropriate relief? [ 59 ] During the course of submissions on the appeal, Ms. Clements’ counsel suggested that her client would be agreeable to more specific terms of access in substitution for or in addition to, those contained at paras. 86-91 of the trial judge’s decision. On the panel’s request, she forwarded these to the Court’s registry on July 23, 2019. In this submission, Ms. Clements repeated her willingness to cover half the costs of C’s travel. At the panel’s request, Mr.

Harnett replied in an email of July 31, 2019. Amongst other things, the parties’ submissions suggested that electronic communication was not the preferred format and that difficulties in maintaining telephone contact have persisted since relocation. In general the submissions reinforced the need for specificity in the terms of access in order to avoid opportunities for disagreement between the parties. [ 60 ] In such circumstances, this Court could either refer the terms of access back to the trial judge for reconsideration or substitute terms.

In light of the parties’ fresh submissions on access terms and the time it would take to refer the matter back, substituting terms is in the best interests of the child. [ 61 ] In light of the mother’s confirmed willingness to pay half the costs of travel, the high conflict relationship between the parties and the reality that Ms. Clements is unlikely, barring specific terms, to foster the father-son relationship, I would determine the following terms of access to be in the child’s best interests: 1. Effective on C’s relocation, Ms. Clements shall: (

a) promote and encourage a positive relationship between C and his father; (

b) ensure that: (

i) at her expense, C has a cell phone of his own with which he can call his father at any time and receive daily phone calls from his father between 3:30 and 7:30 p.m. Alberta time; (ii) Mr. Harnett is advised by Ms. Clements of C’s contact information and any changes thereto so that he can telephone, text or email C and mail cards or packages; (iii) any cards or presents from Mr. Harnett are the subject of an appropriate acknowledgment by the child; (iv) C telephones his father annually both on Father’s Day and Mr. Harnett’s birthday with a special message; (

v) Mr. Harnett is advised regularly of C’s school, teachers, hours of instruction and performance, any extracurricular activities in which he is enrolled and other significant events affecting C’s education, health and general wellbeing; (vi) Mr. Harnett receives hardcopy photographs of C at least monthly. 2. Starting with Christmas 2019 and every Christmas thereafter, Mr. Harnett shall advise Ms. Clements by October 1st annually of the date on which he has arranged for C to travel to this Province to exercise his access which shall be for no less than one week. In odd numbered years commencing 2019 Mr.

Harnett shall be entitled to include Christmas eve and Christmas day on the visit. In even numbered years commencing 2020 this visit shall commence no earlier than December 27 th . Should both parties be in this Province for Christmas, Christmas Day shall be shared so that each parent gets a minimum of 6 hours and one mealtime with their son. Travel

arrangements to this Province are to be made in all cases by Mr. Harnett and the costs of both C’s travel to Newfoundland and Labrador and any adult required to accompany him (other than Ms. Clements) are to be borne by Mr. Harnett. Travel arrangements back to Alberta are to be made in all cases by Ms. Clements and the costs of both C’s travel to Alberta and any adult required to accompany him are to be borne by Ms. Clements. 3. Starting with the summer of 2020 and every summer thereafter, Mr. Harnett shall be entitled to one month access either July 1 - 31 or August 1 - 31. He shall advise Ms.

Clements by March 30 annually of the arrangements he has made for C to travel to this Province to exercise his one month of summer access. Travel arrangements to this Province are to be made in all cases by Mr. Harnett and the costs of both C’s travel to Newfoundland and Labrador and any adult required to accompany him (other than Ms. Clements) are to be borne by Mr. Harnett. Travel arrangements back to Alberta are to be made in all cases by Ms. Clements and the costs of both C’s travel to Alberta and any adult required to accompany him are to be borne by Ms. Clements.

Should both parties be in this Province during Mr. Harnett’s one month of access, Ms. Clements may have access to C for a two-day visit mid-way through the month. 4. When C is in his father’s care, he shall be entitled to make and receive daily phone calls to and from his mother. 5. Annually on C’s birthday, Ms. Clements shall ensure that Mr. Harnett is aware of arrangements made for the child’s party, that hardcopy photos are sent of the event and that C both accepts and acknowledges presents sent by Mr.

Harnett and is available for a special telephone call from his father on his birthday between 3:30 and 7:30 p.m. Alberta time. 6. (

a) In the event that Mr. Harnett should choose instead to travel to the Province of Alberta at either Christmas or the summer to exercise his access, he must notify Ms. Clements by October 1st annually of Christmas plans and by March 30th annually of summer plans and the relevant provisions of paras. 2 and 3 above shall apply to these periods. (

b) In the event that Mr. Harnett should travel to the Province of Alberta at any other time of year and wish to exercise his access to C there, he shall give Ms. Clements 30 days’ notice of his intention and he shall be entitled to a minimum of 4 hours of daily visits with C outside of school hours. During such access, Mr. Harnett shall ensure that C attends all scheduled extracurricular activities and completes homework. Mr. Harnett shall also be entitled to overnight visits Friday after school to Sunday at 5 p.m. 7. In the event that Mr.

Harnett’s sister or mother should travel to the Province of Alberta and wish to exercise access to C, Ms. Clements shall concede to all reasonable requests to allow C to visit his aunt and grandmother. 8. If breach of the terms of access set out herein is established, the deprived party shall be entitled to compensatory access. 9. Any of these conditions can be varied by mutual consent in writing without the need to make a variation application.

CONCLUSION [ 62 ] For the reasons stated, I find no error of law, material error or serious misapprehension of the evidence in the conclusions of the trial judge on the question of mobility. I would therefore dismiss this portion of Mr. Harnett’s appeal. [ 63 ] The trial judge’s conclusions on the terms of access which would be in C’s best interests following his relocation to the Province of Alberta represent a material error.

The imposition of costs of travel upon the father was made without consideration of his financial circumstances, ignored evidence of the mother’s willingness to pay half the costs and was made without explanation for why Mr. Harnett was required to pay the full cost. [ 64 ] In ordering general terms, the trial judge made no assessment of the mother’s conduct and provided no reasoning to support how the terms of access post relocation would:

a) be in the child’s best interests;

b) serve to maximize contact with the father; or

c) reduce the risk that the mother would not promote a relationship with the father. The high conflict relationship and the mother’s failure to promote access required precise terms of access that would reduce opportunities for disagreement and enhance the likelihood of the father having an ongoing relationship with his son notwithstanding their geographic separation. [ 65 ] I would therefore set aside paragraphs 86-87, 89 and 91 of the trial judge’s decision and would substitute the terms of access detailed above therefor. [ 66 ] In light of the divided success and Mr. Harnett’s status as a self-represented litigant, I would make no order as to costs. Appeal allowed, in part.