Lemay v Lemay, 2023 ABKB 303

Court of King’s Bench of Alberta Citation: Lemay v Lemay, 2023 ABKB 303 Date: 20230524 Docket: 4801 186150 Registry: Calgary Between: Brandon Mark Lemay Plaintiff/Applicant/Cross-Respondent - and - Sara Christine Lemay Defendant/Respondent/Cross-Applicant _______________________________________________________ Reasons for Decision of the Honourable Justice M.A. Marion _______________________________________________________ I.

Introduction [ 1 ] The applicant, Brandon Lemay ( Father ) applies to enforce or vary parenting time pursuant to a consent Divorce Judgment and Corollary Relief Order dated February 9, 2021 ( Judgment ). He seeks 50/50 shared parenting of two boys (10 and 7) and a girl (9) ( Children ) based on a week-on, week-off schedule, together with a penalty in the event the respondent, Sara Christine Lemay ( Mother ) fails to comply with the order.

Notwithstanding that the Judgment contemplated at least 40% parenting time for the Father and alternating weekly parenting, since 2020 the parties have been following a modified 2 days – 2 days – 5 days – 5 days ( 2255 )

schedule during the bulk of the year, other than for about 3-4 weeks during spring seeding and 3-4 weeks during fall harvest when the Father’s farming responsibilities have prevented him from being the primary parent. [ 2 ] The Mother cross-applies for an order granting her permission to relocate the Children to Winnipeg, or alternatively elsewhere in Alberta. In the alternative, if her relocation application is not successful, she seeks an order confirming a parenting regime where she would have parenting time 60% of the time. [ 3 ] This decision turns on several issues, including: (

a) the appropriate process for deciding the two applications given the Mother’s proposed relocation; (

b) the impact, if any, of the Mother’s non-compliance with Divorce Act , RSC 1985, c 3 (2 nd Supp ) relocation notice requirements; (

c) the appropriate onus for the relocation application under

section 16.93 of the Divorce Act in light of the parties’ unique parenting regime; (

d) whether there has been a change of circumstances and (

e) the best interests of the Children. [ 4 ] For the reasons below, I dismiss the Mother’s relocation application and grant the Father’s application.

II. Background [ 5 ] The parties commenced their relationship in 2011, began cohabiting in 2012, and were married in June 2013. They were together almost 6 years and had the three Children. They separated in November 2018. [ 6 ] To-date, the parties’ divorce action has been simple and streamlined compared to many other cases. The Father commenced divorce proceedings in June 2020 and, on February 12, 2021, Justice Kenny granted the Judgment. [ 7 ] In February 2022, the Father filed a Notice to Attend Family Docket Court seeking 50/50 shared parenting on a week-on, week-off basis.

Around this time, the Mother formally repeated an earlier-expressed desire to relocate. On February 18, 2022, Justice Grosse granted the parties leave to

schedule a one-day oral hearing to address the Father’s parenting application, and the Mother’s relocation cross-application. This is what was before me. III. Record [ 8 ] The parties filed numerous affidavits (the Father’s affidavits were sworn March 23, March 31 and April 11, 2023 and Mother’s affidavits were sworn on March 23, March 31, and April 6, 2023). Each were cross-examined at the oral hearing and, with agreement of the parties, I asked some clarification questions of each party. IV. Issues [ 9 ] The issues are: (

a) What is the appropriate process for deciding these applications? (

b) Should the Mother be authorized to relocate the Children to Winnipeg? (

i) Has there been a change of circumstances? (ii) What is the effect of the Mother’s failure to comply with the notice requirements in the Divorce Act ? (iii) Which burden of proof under

section 16.93 of the Divorce Act applies? (iv) What is in the best interests of the Children? (

c) If the Mother’s relocation application is not successful, should the Father’s application be granted? (

i) Is the Father seeking to vary or only enforce the Judgment? (ii) If necessary, has the Father established a change of circumstances? (iii) What is in the best interests of the Children? V. Analysis A. What is the Appropriate Process for Deciding these Applications? [ 10 ] An application to enforce or vary an existing parenting regime by one parent, which assumes the parents continue to reside in the area they have been residing, that is met with a relocation cross-application, or vice versa , can be difficult for the parties and courts.

Courts must take a principled analytical approach in light of the purposes of the Divorce Act . [ 11 ] In my view, such competing applications cannot be analyzed together. For example, in this case, the court cannot blend the two applications together and compare the Mother’s relocation proposal (which assumes the parents live in geographically distant places) against the Father’s proposal (which assumes the parents continue to reside in the same area). This approach would offend

section 16.92(2) of the Divorce Act and would effectively put the Mother in the prohibited “double-bind” described by the Court of Appeal: Spencer v Spencer , 2005 ABCA 262 at paras 18-20 ; MacPhail v Karasek , 2006 ABCA 238 at paras 51-52 ; Scott v MacLean , 2020 ABCA 173 at para 8 ; Nurmi v Nurmi , 2023 ABCA 123 at para 15 . [ 12 ] Therefore, the question is whether, analytically, I should first assess the Father’s parenting application or the Mother’s relocation application.

Although the Father first sought relief from the court, I do not think that the court should proceed on a first-filing or “race to the courthouse” basis. In most cases, the timing of which party first sought relief will be irrelevant unless there is evidence that a cross-application has not been advanced in good faith, but for primarily tactical reasons. In my view, the court’s focus should be on dealing with the reality of the situation.

In this case, the Mother’s cross-application was brought in good faith, not as a tactical strike against the Father’s application. [ 13 ] Other courts have grappled with the analytical framework in these types of situations. In Csorba v Csorba , 2017 ABCA 190 , there was no extant parenting order in place and the mother unilaterally relocated from Calgary to Saskatchewan with the child of the marriage. The chambers judge ordered the mother to return to Calgary pending a mobility hearing. The Court of Appeal, referencing a

similar earlier decision in Beckendorf v Beckendorf , 2008 ABCA 409 , reversed the chambers judge’s decision, and determined that the court should have determined custody first, and mobility second, based on the sole determinant of the best interests of the child. This approach has been followed in other cases where there was no extant parenting order in place, or where the application effectively involved an initial parenting application coupled with a mobility application: TRA v SAE , 2018 ABQB 50 at paras 51-53 ; JMM v TLG , 2019 ABQB 81 at para 18 .

These decisions predate the 2019 amendments to the Divorce Act . [ 14 ] In Ting v Ting , 2022 ABQB 229 , affirmed 2023 ABCA 9 , Justice Harris dealt with the question of whether parenting or mobility should be dealt with first, where there was an interim parenting order in place and where the mother was the primary caregiver and sought to relocate but had not relocated. The father sought shared parenting and, should the mother relocate, primary parenting.

The father argued the court should follow Csorba , and the mother asserted the parenting and mobility applications should be dealt with concurrently. [ 15 ] Justice Harris followed Csorba on the basis it was not limited to cases where there is no extant parenting order. She held it was appropriate to determine parenting first, because if shared parenting as asserted by the father was in the best interests of the child, it would affect the onus under

section 16.93 of the Divorce Act on the relocation application. However, Justice Harris determined that, while parenting must be determined first, she could not ignore the fact that the mother sought to relocate, at para 190: “I cannot assess what is in the child’s best interests for the purpose of a parenting order assuming that the mother will remain in Canada. Not only does this run contrary to the leading case authority as well as s. 16.92(2) of the Divorce Act , but it ignores the reality of the situation”.

She went on to assess parenting “viewed through the lens of both the status quo and circumstances should the child be permitted to move with his mother...”. [ 16 ] With respect, a review of the analysis in Ting indicates that the court effectively assessed the relocation application first because it compared whether the child should live primarily with the mother in South Carolina or in Calgary with the father, not whether shared parenting in Calgary was in the best interests of the parties.

In CR v PS , 2022 ABQB 410 , at para 64 , Justice Graesser interpreted Justice Harris’ decision as finding that it is unnecessary to conduct a preliminary parenting assessment in a mobility application. [ 17 ] In Campbell v Guignard , 2023 ABKB 217 , Justice Grosse did not follow Csorba where both parenting and relocation were at issue. She refused to make a hypothetical decision on parenting as if both parents were going to be in Calgary, and then decide mobility. She took a “holistic” approach in light of the reality that one parent will be in Calgary and the other will be in New Brunswick.

In effect, she considered the relocation application first. [ 18 ] I note, further, that Csorba may not easily apply to a situation where there are competing relocation and parenting applications which are brought after a final determination on parenting: Barendregt v Grebliunas , 2022 SCC 22 at para 112 . [ 19 ] In DG v AM , 2022 ONSC 2478 , the parties had a final parenting order which provided joint decision-making and equal parenting time on a week-on, week-off basis.

The mother proposed to move to a different city, far enough away to make shared parenting impractical, but not so far away that weekend parenting was impossible. The father brought a cross-motion seeking primary parenting in the event the mother moved. As a preliminary matter, the court addressed how to treat the father’s motion in the context of the relocation in light of

section 16.92(2) , at paras 11-13: [11] At the start of the trial, I raised an issue with respect to the respondent’s motion. To consider it, I would need to make a finding of where the applicant would be living if I refuse to authorize her relocation with the children to Niagara. However, s. 16.92(2) of the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .), states:

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate. I asked for submissions on whether I could entertain the respondent’s motion, given this statutory prohibition. [12] The parties agreed that the statutory prohibition only limits the Court’s ability to assess a person’s intention around where they will live when “deciding to authorize a relocation”.

They agreed that I can receive evidence of the applicant’s intention to relocate if her relief is not granted, but that I must disabuse myself of that evidence when determining whether to authorize the relocation. If I decline the applicant’s relief, I could then consider the applicant’s intention in the context of the respondent’s motion to grant him sole decision-making, child support, and the majority of parenting time . [13] In my view, the approach agreed upon by the parties is a sensible one. It will allow the Court to deal with this case justly, consistent with r. 2 of the Family Law Rules , O.

Reg. 114/99 . The rationale for s. 16.92(2) of the Divorce Act is to avoid the difficult position moving parties find themselves in on relocation motions. If a parent says they will relocate without a child, it may suggest the parent is not devoted to the child. If a parent says they will not relocate without the child, it suggests the relocation is not sufficiently important. However, if I do not receive evidence on the applicant’s intention to move, I am unable to determine the respondent’s motion.

This would necessitate a further hearing on his motion after the applicant decides to move (or not), with much of the same evidence being relied upon during this trial.

This would waste the parties’ resources and would lead to prolonged uncertainty for this family, none of which is in the children’s best interests. [Emphasis added] [ 20 ] In JYL v TLL , 2021 ABQB 680 , at para 3 , although a formal cross-application was not before her, Justice Angotti followed an approach where she first considered the relocation application and then the “resulting parenting arrangements”. [ 21 ] In my view, the appropriate analytical approach may depend on the factual circumstances of each case.

I do not believe that Csorba , which was decided before several Divorce Act amendments, or other cases where there is no extant parenting order and one of the parents unilaterally relocates and the court must first determine interim parenting pending the mobility application, neatly applies to all other circumstances. It does not apply neatly in this case. [ 22 ] In this case, there is a shared parenting regime by final order in the Judgment, and a de facto 2255 shared parenting being followed by the parties. If relocation of the Children to Winnipeg is authorized, the Father’s application would be rendered moot.

In my

view, to address the Father’s parenting application first ignores the reality that the Mother proposes relocation, and would put the Motherin a double-bind which would offend

section 16.92(2) of the Divorce Act, as it would have to be assumed she is not relocating. I disagreewith Ting to the extent it suggests, at para 186, that the onus in determining the relocation application should be influenced by a decisionon parenting that is decided as part of the same hearing. In my view, the onus under

section 16.93 should be determined based on thesituation at the time immediately before the relocation application hearing. [23] For those reasons, in this case I prefer and adopt the approach in DG v AM – a blended hearing that protects against thedouble-bind and honours

section 16.92(2) of the Divorce Act. Therefore, I first consider the relocation application and then, dependingon the result, will consider the Father’s parenting application if necessary. In considering the relocation application, I will ignore theMother’s evidence as to her intentions if she is not authorized to relocate the Children. If her application is granted, parenting will have tobe determined in light of the relocation as shared parenting will be impossible.

If relocation is denied, then I will consider whether theMother intends to relocate without the Children in the context of the Father’s application. [24] Given these complexities, in some future cases it may be appropriate for the court to exercise its discretion to hold twoseparate hearings – first relocation and then an application dealing with the reality of the relocation decision.

However, this will notalways be practical, in the best interests of the children, or consistent with the foundational rules in the Alberta Rules of Court, Alta Reg124/2010 which strive to provide a means by which claims can be fairly and justly resolved in a timely and cost-effective way: rule 1.2.In many cases it will be preferred to have one hearing, with appropriately sequenced analysis. [25] I now proceed to consider the Mother’s relocation application, without regard to what she will do if she is not authorized torelocate the Children. B.

Should the Mother be Authorized to Relocate the Children to Winnipeg? 1. Is there a Change of Circumstances? [26] A proposed move with children will often require a variation to a final or interim parenting order.

Historically, under Gordonv Goertz, (SCC), [1996] 2 SCR 27, and section 17(5) of the Divorce Act, the parent proposing relocation had to firstestablish whether the move would cause a material change in the child’s circumstances: MacPhail at para 30; MMG v JAS, 2017 ABCA209 at para 17; CKA v SLA, 2019 ABCA 492 at para 22. [27] Section 17(5) of the Divorce Act continues to provide that “before the court makes a variation order in respect of a parentingorder or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of theorder or the last variation order made in respect of the order...”.

However, since Gordon, section 17(5.2) of the Divorce Act has beenenacted, which provides that “the relocation of a child is deemed to constitute a change of circumstances of the child for the purposes ofsubsection (5)”. [28] The Divorce Act defines “relocation” as follows: relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-makingresponsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’srelationship with (

a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of thatchild pending; or (

b) a person who has contact with the child under a contact order; [Emphasis added] [29] Since section 17(5.2) of the Divorce Act has been enacted, it has been interpreted, when read together with sections 16.9 and17(5), to mean that the relocating parent need not demonstrate, and the court does not need to satisfy itself that there has been, a changein circumstances of the child beyond the proposed relocation: Al Kowatli v Berrwin, 2021 ONSC 4999 at paras 18-20; Cote v Parsons,2021 ONSC 3719 at para 50; Nicholas Bala and Yakin Ebsim, The 2021 Canadian Parenting Reforms: Is Shared Parenting the NewNormal?, 2022 CanLIIDocs 557 at page 25 [Canadian Parenting Reforms].

The policy is that since the definition of relocation requires asignificant impact on the child’s relationship with a parent or person with a contact order, it will always meet the requirement of amaterial change of circumstances as contemplated in Gordon and other cases. [30] I agree that a change of circumstances does not need to be shown, provided that the proposed move meets the definition of a“relocation” under the Divorce Act. There will be proposed moves that do not constitute a “relocation” because they do not have a“significant impact” on relationships.

Each case will depend on its facts, and an application to allow a move that is less than a“relocation” will fall outside

section 16.92 of the Divorce Act and, if it involves varying a parenting order, will continue to require amaterial change of circumstances. [31] I am satisfied that the Mother’s proposed move to Winnipeg with the Children is a “relocation” under the Divorce Act, as itwould render continued shared parenting impossible and would, therefore, have a significant impact on the parental time with theChildren. It is not necessary for the Mother to establish a material change of circumstances beyond her relocation. 2.

What is the Effect of the Mother’s Failure to Comply with the Notice Requirements set out inthe Divorce Act? [32] Sections 16.9 and 16.91 of the Divorce Act have formal notice requirements for relocations. The required form has specific

informational requirements that must be included. In this case, the Mother acknowledges she did not provide the required formal notice. Even though the court application was scheduled over a year ago, she did not advise the Father of her specific proposed relocation to Winnipeg until March 27, 2023, about two weeks before the oral hearing.

She did not provide the specific address or date of the Children’s proposed relocation until just three days before the oral hearing. [ 33 ] Compliance with the statutory notice requirements should be the norm because they are a crucial part of the relocation regime designed to ensure the status quo pending a proper hearing, and to give parties an opportunity to discuss and reach resolution before the move or before resort to the court is required: YZVM v DTT , 2022 ABCA 87 at para 20 ; BMWG v JWG , 2022 BCSC 1346 at para 38 . [ 34 ] However, courts have discretion to hear a relocation application notwithstanding non-compliance with the Divorce Act notice requirements.

This is express in

section 16.9(3) of the Divorce Act and implicit in that the failure to provide notice under

section 16.9 is only one of many factors the court must consider in determining whether to authorize a relocation:

section 16.92(1) (d): YZVM at paras 19-20 . [ 35 ] In my view, non-exhaustive factors courts consider in exercising discretion under 16.9(3) include whether: (

a) the moving-parent has unilaterally moved the children without agreement or court involvement: see AJL v JGL , 2021 BCSC 249 at paras 39-40 ; Sekyi v Sekyi , 2021 ABQB 915 at para 16 ; Young v Peters , 2022 ONSC 6869 at para 63 (d); (

b) the failure to give notice was an innocent mistake or done in bad faith (for example to try to change the status quo ): BMWG at para 53 ; (

c) family violence made providing notice unsafe, impractical or risky:

section 16.9(3); AJK v JPB , 2022 MBQB 43 at paras 50- 52 ; MP v PP , 2022 BCSC 1511 at paras 17-22 ; EDW v DL(B)W , 2023 NBKB 18 at para 224 ; (

d) the informational and timing requirements under

section 16.9 have substantially been met or can be remedied, or where the responding parent has constructive or actual notice of the specific relocation plan: see Siddiqi v Khan , 2021 ONSC 5326 at para 24 ; KCM v SJS , 2023 BCSC 435 at paras 76-77 ; Keeping v Keeping , 2021 ABQB 892 at paras 25-26 ; DDC v BJC , 2022 SKQB 79 at para 23 ; (

e) the non-moving parent is prejudiced by the failure to provide notice: Siddiqi ; KCM at para 77 ; (

f) requiring formal notice would not likely change the result but would likely cause undue delay, expense and uncertainty; (

g) there is no ongoing relationship between the children and the non-moving parent. See, for example, similar provisions in some provincial statutes as discussed in Thompson, Legislating About Relocating Bill C-78, N.S. and B.C. , 2019 28 th Annual Institute of Family Law Conference 20, 2019 CanLIIDocs 3939 [ Legislating About Relocating ] at pages 6-7; and (

h) the best interests of the children otherwise requires the parent to provide the formal notice. [ 36 ] In all the circumstances, I consider the Mother’s evidence and submissions to be sufficient to invoke relief under

section 16.9(3) of the Divorce Act , and I accordingly direct that the formal requirements of

section 16.9 are not required in this matter. My reasons include: (

a) although the Mother’s relocation plans were not made specific until recently, her intention to relocate away from Three Hills has been known since October 2021; (

b) it should not have surprised the Father that she proposed to relocate to Winnipeg given that he was aware that her new partner is located there; (

c) the Mother’s counsel took responsibility for the failure to provide the notice – it was an innocent mistake as far as the Mother is concerned; (

d) the Father did not take any steps to seek clarification about the specifics of the Mother’s relocation proposal since this matter was directed to an oral hearing in February 2022; (

e) the Father had actual and effective notice at the time of the hearing of the Mother’s specific relocation proposal, and did not request any further details prior to the hearing; (

f) the Father did not seek an adjournment to better respond to the Mother’s specific plan, and has not provided evidence of any prejudice caused by the Mother’s approach to notice or that it might change his position; (

g) the proposed relocation of the Children is not until August 2023, which is more than 60 days from the date of the hearing; and (

h) forcing the Mother to re-start the process would unfairly result in significant delay and additional expense to all parties. [ 37 ] This does not mean that the Mother’s approach is condoned by the Court (it is not). It also does not mean that the Mother’s approach is not otherwise relevant to the Court’s consideration of her application (it is). Pursuant to

section 16.92(1) (

d) of the Divorce Act it remains a relevant consideration in determining the best interests of the Children. 3. Which Burden of Proof under

section 16.93 of the Divorce Act applies? [ 38 ]

Section 16.93 of the Divorce Act addresses the burden of proof in relocation applications. It provides:

Burden of proof — person who intends to relocate child 16.93

(1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child. Burden of proof — person who objects to relocation

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child. Burden of proof — other cases

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child. [ 39 ] The burdens of proof in sections 16.93(1) and (2) will likely only play an important role where the evidence in the relocation application does not allow a chamber’s judge to decide whether it is in the best interests of the child to relocate or stay: Nurmi at para 9 . [ 40 ]

Section 16.93(2) of the Divorce Act does not apply here, because the Children do not spend the vast majority of their time with the Mother. I need not consider what “vast majority” means for the purposes of this matter. [ 41 ] The Father’s position is that

section 16.93(1) applies in this case. The Mother argues that it does not and, therefore,

section 16.93(3) applies. [ 42 ]

Section 16.93(1) of the Divorce Act reflects that, in cases where there is a pre-existing order, award or agreement providing for substantially equal parenting time, and that is being substantially followed, the burden of proof is on the parent seeking to relocate the children: Link v Lenskyj , 2022 BCCA 341 at para 17 ; Barendregt at para 149 . [ 43 ] To determine if

section 16.93(1) of the Divorce Act applies, I must assess: (1) is there an order or agreement respecting parenting time? (2) if so, have the parties “substantially complied” with the order or agreement? and (3) if so, does the order or agreement provide for “substantially equal parenting time”? I address these questions below. a. Is there an Order or Agreement for Parenting Time? [ 44 ] A

summary of the parties’ parenting regime since separation and divorce is necessary. [ 45 ] Following separation in November 2018, the parties lived separate and apart within the family home in Kneehill County, near the town of Trochu. In February 2019, the Father remained at the family home and the Mother moved with the Children to a new home about a 20 minute drive away in Three Hills. The Children resided primarily with the Mother and the Father had parenting time as agreed, which appears to have been weekend parenting time.

Initially the Mother had in-home child care assistance, and then the Children transitioned to a day home. [ 46 ] In July 2019, the parties agreed to adjust the parenting

schedule so that the Mother would have the Children in her care 60% of the time, and the Father would have the Children in his care 40% of the time. This parenting regime did not appear to have specificity and became challenging, likely due to the Father’s schedule. The Father did not feel he was getting consistent or enough parenting time and in about the fall of 2019 he proposed a new

schedule based on a modified 2255 schedule. This

schedule contemplated, among other things a 60/40 parenting time split based on, among other things: (1) a 2255

schedule for the bulk of the year (except during seeding and harvest, and possibly holidays); (2) full parenting time with the Mother during seeding and harvest, unless the weather prevented the Father from working during seeding or harvest, in which case he could exercise additional parenting time; (3) if the Father exercised parenting time during seeding or harvest, the parties would trade subsequent parenting days back to the Mother for those days (all collectively, the Modified 2255

Schedule ). In January 2020, the parties began implementing the Modified 2255 Schedule. [ 47 ] In summer 2020, the parties executed a Matrimonial Settlement Agreement ( Settlement ). The Settlement addressed parenting, including as follows: Regular Parenting Rotation 7.1 The parties agree that they will roughly follow an alternating week basis on a 60/40

schedule that will require both parties to adjust for any circumstance, with a week being defined as Monday to the following Sunday at times as mutually agreed between the parties. 7.2 The parties agree that the week’s parenting

schedule and pick up and drop off dates will vary and change based on the needs of the children, Brandon’s farming

schedule and Sara’s work schedule. The parties agree that they will be flexible with their parenting arrangements. The parties acknowledge that Brandon’s employment in the agriculture business means he works extended hours during spring seeding and fall harvest. [ 48 ] The Mother asserted that the Settlement reflected the Modified 2255 Schedule. However, it is arguable that the Settlement was something different than the Modified 2255 Schedule, in particular because it does not specifically address parenting time during seeding or harvest, or trading days.

Regardless, the parties continued to follow the Modified 2255 Schedule. [ 49 ] In February 2021, the parties consented to the Judgment. In his affidavit in support of the Judgment, the Father swore that the Children were, at that time, residing 50% with each spouse. The Judgment addressed parenting, including as follows:

2. The parties shall continue to have joint custody of the Children. 3. The parties shall share residential care of the Children between them such that the Children shall be in the care of the [Father] for a minimum of 40% of the time and in the care of the [Mother] for the remainder. 4. Each party shall have the Children in his or her care on an alternating weekly rotation, with a week being defined as Monday to the following Sunday (the “Regular Parenting Schedule”). Each week’s parenting

schedule and respective pick-up and drop-off times may vary somewhat based on the needs of the Children and the parties [sic] schedules and each party shall be reasonably flexible and the parties shall co-operate with one another in this regard. [ 50 ] The Judgment was different than the Settlement, including because it no longer contemplated a 40/60 parenting split, but rather that the Father would have a “minimum” of 40% parenting time. Like the Settlement, it did not specifically address parenting time during seeding or harvest, or trading of parenting time. At the hearing both parties ultimately agreed that the Judgment parenting

schedule was different than the Modified 2255 Schedule, and that they did not strictly follow the Judgment. [ 51 ] That is, after February 2021, and despite consenting to the Judgment, the parties continued to follow the Modified 2255 Schedule. This appears to have caused discord between the parties. The Father’s evidence is that he did not strictly enforce the Judgment because he wanted to avoid disputes, but that he felt the Modified 2255

Schedule was confusing, complex, difficult to implement and hard on the Children. He felt that the Mother controlled the

schedule and was inflexible when it came to enforcing trades for parenting time he exercised during seeding and harvest. He felt that the trading issue caused the family’s parenting

schedule to become unstable and a “mess” in the latter part of the year as the parties implemented all the seeding and harvesting parenting time trades before year end. [ 52 ] In September 2021, the Father requested that the parties move to a week-on, week-off schedule, which he felt was consistent with the Judgment, less complicated, and in the Children’s best interests. He felt that the Mother refused to consider it. The Mother’s evidence was that she did not believe that a week-on, week-off parenting

schedule was in the children’s best interests. She testified at the hearing that she also did not want to change the Modified 2255

Schedule because it was what they had agreed to, and because she was planning to relocate in the near future. [ 53 ] The parties attempted mediation in December 2021, but were unsuccessful, and then the Father commenced the process leading to the oral hearing. The Father’s evidence is that, in 2022, he felt that the Mother made it difficult for him to see the Children during seeding and harvesting, which he believes was to punish him for bringing his application. No further mediation attempt was agreed to in 2022 and the parenting has continued with the Modified 2255

Schedule pending the hearing before me. [ 54 ] The upshot of all of this is that, despite formally agreeing to the written Settlement, and then consenting to the Judgment, the parties have largely been following the Modified 2255

Schedule since January 2020. [ 55 ] There was no evidence before me of the exact number of days of parenting time each party had in 2020-2023. [ 56 ] With that context, I consider whether there are orders or agreements as contemplated by

section 16.93(1) . [ 57 ]

Section 16.93(1) does not expressly address what constitutes an agreement. However, it is plain that an agreement under

section 16.93 does not need to be in writing. The Divorce Act specifically refers to written agreements in other places (see, for example,

section 15.1(5) (

a) in respect of child support), but not in this section. See also Tariq v Khan , 2022 ONSC 1167 at paras 71-74 . [ 58 ] While written agreements may not be required, the

interpretation of the degree of formality or conduct required to qualify as an “agreement” under

section 16.93 continues to develop. For example, in Barendregt , the Supreme Court of Canada, at para 123, stated that “the history of caregiving will sometimes warrant a burden of proof in favour of one parent”, but provided no further guidance and it is not clear if this was intended to provide meaning to “agreement”, or was simply a recognition of the different burdens set out in

section 16.93(1) and (2): Campbell at para 12 . [ 59 ] Some courts and commentators have suggested that informal parenting “arrangements” made after separation can or should constitute an “agreement” for the purposes of

section 16.93(1) : Legislating About Relocating at page 10; MJV v JR , 2022 BCSC 1068 at para 33 ; Malanowich v Toth , 2021 SKQB 249 at paras 43-47 . However, in my view, this is difficult to reconcile with the fact that the Divorce Act treats “arrangements” and “agreements” as different things elsewhere (see

section 15.2(4) (

c) in the context of spousal support). There are also questions as to how long informal agreements or arrangements must be in place before they could become “agreements”: MJV at para 33 ; Malanowich . To be an “agreement” any arrangements would have to be “freely negotiated” or voluntary, and not the result of unilateral action by one of the parties, involuntary court restrictions, or an inability to carry out court-ordered parenting: Wu v Yu , 2022 ONSC 3661 at para 123 ; Zorab v Zourob , 2021 ONSC 6552 at para 96 .

Further, less formal arrangements might be precluded by the terms of formal agreements or orders. [ 60 ] I also note that if de facto parenting arrangements “on the ground” can too readily constitute an “agreement”, it might nullify or weaken the substantial compliance component of

section 16.93(1) because the de facto parenting arrangements followed by the parties would almost always be the same as, or in substantial compliance with, their informal “agreement”. [ 61 ] Here, the parties’ may have reached an “agreement” to follow the Modified 2255

Schedule under 16.93(1) of the Divorce Act from January 2020 until June 2020. However, I find that the Settlement replaced any earlier agreement. [ 62 ] The Settlement was in writing and was clearly an agreement contemplated by

section 16.93(1) of the Divorce Act . The Settlement also provided: No termination of, or amendment to, this agreement will be effective unless it is in writing and signed by both Brandon and Sara after they have both received independent legal advice about the changes. [ 63 ] There is no evidence that the Settlement has ever been terminated. Although the parties continued to follow the Modified

Schedule following the Settlement, to the extent the Modified 2255

Schedule was different than the Settlement, on the record before me I find that the Modified 2255

Schedule was not in writing and did not amend the Settlement. It was not an “agreement” under

section 16.93(1) of the Divorce Act . [ 64 ] The Judgment was granted eight months after the Settlement. In my view, the Judgment was slightly different than the Settlement, and I find that the Judgment amended the Settlement as it was consented to in writing by the parties and involved the parties’ legal counsel. The Judgment was both an order and an agreement under

section 16.93(1) . [ 65 ] The parties continued to follow the Modified 2255

Schedule after the Judgment. It is possible that the parties reached a temporary arrangement to follow the Modified 2255 Schedule, but they did not amend the Settlement in writing or apply vary the Judgment. In these circumstances, I find that this was not another new “agreement” under

section 16.93(1) . Commencing by at least September 2021, the Father began requesting the parties follow the Judgment, but the Mother refused to stray from the Modified 2255 Schedule. The Father did not voluntarily agree to that arrangement by, at the latest, September 2021. I find that the Father acceded to the Mother’s insistence on the Modified 2255

Schedule for a number of months to avoid conflict, but then commenced these proceedings in February 2022. Therefore, since at least February 2022, and more likely since September 2021, the parenting on the ground using the Modified 2255

Schedule was effectively “under protest” and did not constitute an agreement under

section 16.93 of the Divorce Act . [ 66 ] Accordingly, I find that the Settlement, as amended by the Judgment, and the Judgment, are the orders or agreements for the purposes of

section 16.93(1) of the Divorce Act . Even if I am wrong, and the Modified 2255

Schedule was an “agreement” contemplated by

section 16.93(1) of the Divorce Act , as will be seen, it would not change my decision on the applicable burden of proof. b. Have the Parties Substantially Complied with an Order or Agreement for Parenting Time as Contemplated in

Section 16.93(1) of the Divorce Act ? [ 67 ] The Divorce Act does not define what “substantially comply” means in

section 16.93(1). In my view, it recognizes that children’s lives are not static and that parenting regimes need to be flexible to address the realities of the family’s life over time. As long as the de facto parenting “on the ground” more or less squares with the order or agreement, there is substantial compliance for the purposes of

section 16.93(1): KDH v BTH , 2021 ABQB 548 at para 33 . Where the actual parenting on the ground is materially different than the order or agreement, or where there are two materially different agreements or orders, then there may not be substantial compliance and

section 16.93(1) will not apply: KCM v SJS at paras 78-82 . [ 68 ] The Judgment has been in place now for over two years. Like the Settlement, it recognized the challenges caused by the Father’s farming employment, by providing for shared parenting with alternating weeks, with a minimum of 40% parenting time for the Father, and expressly provided for flexibility and cooperation. [ 69 ] I must compare the Modified 2255

Schedule with what is contemplated in the Settlement, as amended by the Judgment, factoring in the flexibility they both incorporated. Although I do not have the exact number of days the Father had parenting time in any particular year, the Mother’s evidence is clear that the parties used trading days to maintain, or to attempt to maintain, the Father’s 40% parenting time. Her evidence was that the Judgment “reflected the 60/40 split in parenting we had agreed upon” (referring to the Modified 2255 Schedule). [ 70 ] In all the circumstances, given the Father had approximately 40% parenting time, notwithstanding they did not use an alternating weekly

schedule but instead followed the Modified 2255 Schedule, I find that the parties substantially complied with the Judgment even though they were not strictly following it. c. Does the Order or Agreement of the Parties provide for Substantially Equal Parenting Time? [ 71 ]

Section 16.93(1) uses the phrase “substantially equal”, and not a specific enumerated percentage like used elsewhere – for example

section 9 of the Federal Child Support Guidelines , SOR/97-175 . It also does not define how “time” is to be calculated (whether by months, weeks, days, half-days, hours, waking-hours, minutes, or something else). The phrase “substantially equal parenting time” has been described as infusing an intentional element of uncertainty: Malanowich at para 39 .

In my view, it reflects Parliament’s clear intention that there is flexibility to consider the question of whether 16.93(1) applies having regard to all of the circumstances of the case, rather than based on a formulaic approach: Droit de la famille — 23190 , 2023 QCCA 207 2023 QCCA 207 at para 32 ; Droit de la famille — 211795 , 2021 QCCS 3938 at para 29 ; Malanowich at para 39 . [ 72 ] A flexible application of substantially equal is confirmed by the legislative notes to the 2019 changes to the Divorce Act , which provided that the burdens of proof in

section 16.93 “are not based on a precise percentage of time. Percentages could lead to bargaining over a specific percentage of parenting time, rather than focussing on what is in the best interests of the child when making parenting arrangements”: see Shipton v Shipton , 2023 ONSC 1342 2023 ONSC 1342 at para 101 , citing Legislative Background:

An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (Bill C-78 in the 42nd Parliament). [ 73 ] While precise formulas or specific percentages are not the overriding factor in determining “substantially equal” parenting time, they do provide some guidance on thresholds. Many cases involve 50/50 parenting, which will obviously be substantially equal. It appears to be generally recognized that 40% parenting time, which is expressly used to determine child support in shared parenting situations in

section 9 of the Guidelines , provides a good rough indicator of the lower end of the threshold, but it is not a hard and fast cut-off point or a guarantee of substantially equal parenting time: Cote ; McBennet v Danis , 2021 ONSC 3610 at para 275 ; KCM v SJS at para 79 ; Malanowich at paras 35-38 ; Legislating About Relocating at pages 13, 14 and 19, citing cases under British Columbia provincial legislation: DAM v EGM , 2014 BCSC 2091 ; CBB v MB , 2017 BCPC 245 ; RDD v INA , 2015 BCPC 264 ; GH v MJS , 2017 BCPC 322 ; AMD v KRJ , 2015 BCSC 946 . [ 74 ] Accordingly, shared parenting where a parent has 40-60% of parenting time will often, but not always, mean there is “substantially equal” parenting time.

[ 75 ] The more challenging assessment is when one parent’s parenting time drops below 40% and is in the 30-40% range: Legislating About Relocating at page 19. In JYL v TLL , 2021 ABQB 680 , at para 19 , Justice Angotti held that 30% was not substantially equal. In Ting , Justice Harris held that 31% was not enough. In Rinetti v Kent , 2022 ABQB 1 at paras 20-21 , Justice Hall held that 36% was insufficient.

In interpreting the same language in the British Columbia Family Law Act , courts have held that parenting time between 35-40% and 38.8% was substantially equal: GH v MJS , 2017 BCPC 322 ; MM v CJ , 2014 BCSC 6 at para 59 . A Quebec case has held that 37.5% was substantially equal parenting time: Droit de la famille — 211795 at paras 25-28 .

Professor Thompson has suggested 38% would be a “defensible cut-off”: Legislating About Relocating at page 19. [ 76 ] In my view, in cases which are close to the 40% threshold (in either direction), the specific factual context becomes critical, viewed in light of the underlying policy behind the burden of proof in

section 16.93(1), namely that in cases of substantially equal parenting, all else being equal, the starting point is that the stability of the status quo is in the best interests of the children and the moving parent should have the burden to show that it is in the children’s best interests to relocate: Legislating About Relocating , at page 19; see also Canadian Parenting Reforms at page 24. [ 77 ] For example, in KDH at para 33 , Justice Lema referred to the “earthquake” that relocation inevitably causes in children’s lives: My reading is that ss. 16.93(1) and (2) focus on whether parenting “on the ground” squares, more or less (“substantially comply”), with parenting as ordered.

Subsection 16.93(1) asks, effectively: is there an order for equal (or almost-equal) parenting and, if so, are the parties actually parenting in that way? If so, the would-be mover has the onus of showing a move is in the child or children’s best interests.

That is presumably because of the proposed major disruption of a status quo in which each parent is equally (or almost equally) involved in caring for the children i.e. an obvious earthquake (if move approved) in the children’s lives. [Emphasis added] [ 78 ] In Legislating About Relocating , at page 19 , Professor Thompson notes that “i n most cases with two active parents, there is a conflict between a parent’s relocation and the child’s stability”, and describes the policy this way: In making those judgments, it is worth remembering the underlying policy reasons for the presumption that it is not in a child’s best interest to relocate where there is “substantially equal time”.

The child can have the benefit of continuity of community and continuity of care, as one of the proven caregivers will remain in the existing community with the web of school, day care, family relatives and friends. Parental time is a proxy for parental “care”, so it is really “care” that matters. We assume that parents with this much time with the child will have performed the full range of care-giving tasks and ordinary decision-making... [Emphasis added] [ 79 ] The Judgment provides that the Father would have a minimum of 40% parenting time.

Even following the Modified 2255 Schedule, the Mother’s approach attempted to maintain the Father’s parenting time at exactly 40% based on what she asserted was their previous agreement. It seems to me, however, that depending on how long seeding or harvesting was in a particular year, it was possible that the Father’s parenting time could drop below 40%. [ 80 ] Regardless of the exact percentage of the Father’s parenting time, in my view the Judgment and Modified 2255

Schedule both provided for substantially equal parenting time, notwithstanding that the Father’s parenting time did not approach 50%. The main reason that the Father’s parenting time was less than 50% was to accommodate the Father’s farming

schedule during certain times he was unable to be the primary parent due to his long hours. Both parents are proven caregivers in the Children’s lives in the Children’s current communities, both equally invested in raising their Children and both engaging in the full range of care-giving tasks and ordinary, day- to-day decision-making. The relocation of the Children will cause a significant disruption to the Children’s status quo . The policy behind

section 16.93(1) of the Divorce Act is squarely engaged on the facts of this case regardless of the Father’s precise percentage of parenting time. [ 81 ] Accordingly, I find that the Judgment (and if necessary the Modified 2255 Schedule) provided for substantially equal parenting time. As noted above, by following the Modified 2255 Schedule, the parties substantially complied with the Judgment and agreement of the parties. [ 82 ] Therefore,

section 16.93(1) applies and the Mother has the burden of proving that the relocation to Winnipeg would be in the best interests of the Children. C. Is it in the Children’s Best Interests to Relocate to Winnipeg with the Mother? 1. Legal Framework [ 83 ] The court has jurisdiction to authorize or prohibit the relocation of the Children: Divorce Act , sections 16.1(7) , 16.9 and 16.91 - 16.92 . [ 84 ] In Gordon , the Supreme Court of Canada set out a framework for determining what was in the best interests of the child in mobility applications.

The flexibility of the Gordon framework allowed the principles to be refined and supplemented and recent amendments to the Divorce Act have largely codified many of the Gordon principles, with some exceptions. The new Divorce Act regime reflects the collective judicial experience of applying the Gordon framework for 25 years: Barendregt at paras 105-110 ; Nurmi at paras 6-8 . [ 85 ] Section 16(1) of the Divorce Act provides that the “court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order”.

Section 16(2) provides that “when considering the factors referred to in subsection (3) the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well- being.” In the relocation context, ultimately, the sole and crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being: Barendregt at para 152 .

[ 86 ] The assessment is “highly contextual”, “highly fact-specific” and discretionary; the court shall consider “all factors related to the circumstances of the child”: Barendregt at paras 97 and 152-153 . Without limiting the factors the court may consider, it must consider certain expressly legislated factors: Divorce Act , sections 16(1) - (4) and (6) , and

section 16.92 ; Barendregt at paras 153-154 . And the court must not consider certain things in certain circumstances: sections 16(5) and 16.92(2) . [ 87 ] As discussed earlier, under

section 16.92(2) of the Divorce Act , in deciding whether to authorize the relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the moving parent would relocate without the child or not relocate. In Nurmi , the Alberta Court of Appeal has recently reconfirmed that the purpose of

section 16.92(2) is to avoid the “double- bind” recognized long ago in Spencer at para 18 (and numerous cases since then): In conducting this inquiry, it is problematic to rely on representations by the custodial parent that he or she will not move without the children should the application to relocate be denied. The effect of such an inquiry places the parent seeking to relocate in a classic double bind.

If the answer is that the parent is not willing to remain behind with the children, he or she raises the prospect of being regarded as self interested and discounting the children’s best interests in favour of his or her own. On the other hand, advising the court that the parent is prepared to forgo the requested move if unsuccessful, undermines the submissions in favour of relocation by suggesting that such a move is not critical to the parent’s well-being or to that of the children.

If a judge mistakenly relies on a parent’s willingness to stay behind “for the sake of the children,” the status quo becomes an attractive option for a judge to favour because it avoids the difficult decision the application presents. [ 88 ] To avoid the double bind, courts do not compare the proposed move against a scenario where the parent does not move, but the two alternatives assuming the parent does move.

In Nurmi , the Court stated at para 15: So, the options are to assume the applicant will relocate and consider whether it is in the best interests of the children to relocate with the applicant or to remain with the respondent.

Remaining with the applicant in Canada is not an option for the court to consider. [ 89 ] In Scott , the Court of Appeal described the analysis this way, at para 15: The two choices come down to which situation is better for, or less detrimental to, the well-being of the children: being with Parent A in a new place and without the same amount of contact with Parent B, or being with Parent B in the same place without the same amount of contact with Parent A.

Any other analytical construct does not answer the fundamental question being posed; is it in the best interests of the children for them to stay or go in the circumstances. The court is not being asked to take into account a third alternative - whether it is better if no one moves. [ 90 ] Within this relocation framework, the difficulties inherent in determining the best interests of children are “amplified” because “untangling family relationships may have profound consequences, especially when children are involved”: Barendregt at para 97-98 .

Those difficulties are enhanced further, and have been described as a “Herculean task”, when there are two loving and capable or exemplary parents: Godbout v Vandendriessche , 2021 ABCA 328 at para 16 ; CKA at para 16 . [ 91 ] This case prominently engages these difficulties. Below I review the factors set out in sections 16(3) and s. 16.92 of the Divorce Act as I consider which situation is better for, or less detrimental to, the Children of the two available options – the Children relocating with the Mother to Winnipeg, or the Children remaining with the Father. 2.

History of Child Care (Section 16(3)(d)) [ 92 ] In all cases the history of caregiving will be relevant: Barendregt at para 123 . [ 93 ] During the marriage, the family lived together on an acreage about 12 kilometres from Trochu. While they were together, the Mother was the primary caregiver. Her role was to look after the Children and care for the family home. The Father worked during the day but was home almost every evening to put the Children to bed (except during seeding and harvest).

During this time, the Mother had an Amway business which had her travelling to Red Deer about twice per week during the day and attending evening meetings 4-7 times per month. [ 94 ] I have previously outlined the parenting regimes following separation. The Mother was initially the primary parent, but then agreed to increased parenting time for the Father in 2019 culminating in the Modified 2255 Schedule, the Settlement, the Judgment, and the continuation of the modified 2255 Schedule.

Since 2020, the Mother has had approximately 60% of parenting time and the Father approximately 40% parenting time. [ 95 ] The Mother asserts that during the entire lives of the Children, she has been primarily responsible for the Children’s healthcare and educational matters, as well as activities. She maintains their important documents. She organizes and ensures the Children get to their appointments and activities. She provides primary emotional support to the Children. The Father asserts that he is not as involved in the Children’s appointments because the Mother is controlling and does not involve him.

He does not deny the Mother’s involvement, but says that he is also heavily involved, including attending their activities. [ 96 ] Both parents described in ample detail their routines with the Children while in their care, which illustrates that they are both fully engaged and effective parents. [ 97 ] I find that both parents have been actively involved in the Children’s lives, as would be expected. However, the Mother has had more parenting time, has been more involved in organizing the Children’s day-to-day lives, including their medical and other appointments and activities.

She has been the more consistent parent over time. [ 98 ] Overall, this factor favours relocating the Children to Winnipeg with the Mother. 3. Children’s Needs (including Stability) Given Their Age and Stage of Development (Section 16(3)

(a)) [99] The Alberta Court of Appeal has repeatedly emphasized that stability, peace and reliability are crucial at a young age: Werryv Kish, 2023 ABCA 70 at para 6; Ekeberg v Swan, 2022 ABCA 52 at 18; see also Barnes v Park, (Ont CA) at para10.

While many cases involve very young children, and the need for stability may become less pronounced as children get older,numerous courts have highlighted the critical importance of stability in children at or near the same age ranges as the Children in thiscase: Ekeberg at para 18; Klymenko v Klymenko, 2020 ONSC 5451 at para 22; Young v Hanson, 2019 ONSC 1245 at para 32; Low vRobinson, 2000 ABQB 60 at para 57; Tatarin v Tatarin, 2022 ABQB 306 at para 18; Tudor Price v Tudor Price, 2020 ONSC 145 atpara 17; McNeely v McNeely, (NWTSC) at paras 12 and 48; KP v SK, 2021 BCSC 1426 at para 97; Ahmad vAhmad, 2019 ONSC 6804 at para 98; Tovell v Jamieson, 2017 ONSC 5079 at para 46. [100] In any relocation, there will be an immediate disruption to stability associated with uprooting life patterns and relationships.Relocation inevitably leads to disruption, profound consequences, and an earthquake to the status quo: Barendregt at paras 97-98; KDHat para 33.

If this was the only stability factor considered, it would always favour the status quo and never favour relocation. However,some or all instability and disruption caused by a relocation may be short-lived.

Courts must look not only at the immediate instability,but the potential for stability or instability in both scenarios moving forward. [101] The Children’s relocation would cause immediate and significant instability in their lives, removing them from the onlycommunities, support networks and schools they have ever known (other than a brief stint in Lethbridge for the eldest child while theFather was completing school). The short-term disruption and instability favours remaining with the Father. [102] Considering the longer term, the Children’s lives with the Father would likely be quite stable.

The Father is the 4th generation that has farmed in this area, and he has every intention of continuing that and giving the Children the opportunity to be the 5th generation.The Father continues to live in the family home on an acreage and there is no indication he plans to leave. He has had the same newpartner since 2020 who is also employed in the community. There is no evidence any of the several close family members in the areawill be leaving. The Children would all attend the same school until they graduate from high school. [103] In contrast, the Children’s lives in Winnipeg would be more uncertain.

They would likely live temporarily with their maternalgrandmother until the Mother found a place to reside, which may or may not be in the same area. There is a possibility they may need toswitch schools if they start school in the grandmother’s neighbourhood and then relocate out of the catchment area. The Mother does notyet have employment, and the location and type of employment could cause future instability.

However, I agree with the Mother that Ican infer that it is most likely that the Mother will, eventually, be able to find a job and a place to live in Winnipeg, and create a stableenvironment for the Children. A possible exception to this is that the Mother and her new partner have never resided together, and thepartner has never lived with three young children. This creates some additional risk of instability that is less present in the Father’s life. [104] There is no evidence that any of the Children have any special needs that favour relocating or not relocating.

Overall, theChildren are happy, outgoing, caring, friendly, and have friends. I am satisfied that any developmental or other specific needs of theChildren that were noted by the parents in their evidence can be managed equally in either scenario. [105] On balance, this factor favours the Children remaining with the Father. [106] I note, however, that while stability is of critical importance, it is also important not to allow stability considerations tocompletely overwhelm the other considerations mandated by the Divorce Act.

If care is not taken, stability considerations can be an easyresponse to many other considerations in the relocation analysis, because the known, existing life with the non-moving parent may beperceived as more stable than a relocation into an unknown situation. This approach could lead to unevenly skewing the analysis againstrelocation. While stability is a key factor in this case, I have been careful not to inappropriately overweight it or to allow it to overwhelmthe rest of my analysis. 4.

Nature and Strength of Children’s Relationships with Important People in their Lives (Section16(3)(b)) [107] Assessing the nature and strength of children’s relationships under section 16(3)(

b) is not necessarily an exercise in tallying upwhich post-relocation scenario will likely have more relationships. It should not be assumed that quantity is necessarily more importantthan quality. The analysis should focus on the nature of the specific relationships children currently have (which could be positive ornegative), the importance or influence of the relationships on the children’s lives, and the impact the relocation would actually have onthose relationships. Further, the court should factor in the opportunity to develop new relationships, or deepen existing relationships.

It isan assessment of, on balance, which post-relocation scenario provides more overall benefit (or least detriment) to the children in terms oftheir relationships. Assessing this can be an immensely difficult task. [108] In this case, both parents acknowledge that the other has a strong relationship with the Children. Given the history of caregiving,it is likely the children have a stronger connection with the Mother, so as it relates to the parental relationships it favours relocating withthe Mother.

I address this factor in more detail under the “impact of the relocation” (section 16.92(1)(b)) factor below. [109] With respect to Children’s other relationships with important people in their lives, if the Children move to Winnipeg, theywould be living with or spending significantly more time with their maternal grandmother. The maternal grandfather is approximatelythree hours away from Winnipeg and in poor health - there may be an opportunity to potentially marginally grow the Children’srelationship with him.

The Mother’s brother and his partner live in Winnipeg, although the nature of their existing relationship with theChildren is unclear. The Mother frequently takes the Children to visit her family in Manitoba. Certainly, they would see them more oftenin Winnipeg. [110] With the Mother, the Children would be living effectively full-time with the Mother’s new partner. The Mother says theChildren’s relationship with him is great, and they have spent monthly time with him, including significant time with him when he comes

to Alberta to visit. The Father indicated he is “slightly concerned” about the new partner, but agreed on cross-examination that he was not concerned that the new partner is a “bad influence”. The Father is concerned that the new partner has never lived with three children before, not about the partner’s relationship with the Children. I have already factored the risk that the partner may have second thoughts once he lives with a young family full time in my stability analysis.

As the Father did not take any steps to get to know the Mother’s new partner, and was content to have the new partner spend significant time with the Children when visiting the Mother, I give little additional weight to the Father’s concerns about the new partner. [ 111 ] If the Children move to Winnipeg, it would undoubtedly affect their relationship with the extended family in the Trochu area. There is evidence of a very strong bond between the Children and the paternal grandparents which would be affected by a relocation.

The Father’s brother and his family live nearby in Red Deer and they see them approximately once per month.

The Children’s relationship with the Father’s new partner is strong and she has been actively involved in their lives since 2019. [ 112 ] On the other hand, if the Children remain with the Father, in addition to impacting their relationship with the Mother, they will miss the opportunity to grow or develop new relationships in Manitoba, in particular with the maternal grandparents, extended family and the Mother’s partner. [ 113 ] On balance, I find that the benefits to the other relationships of each scenario have offsetting detriments to the other relationships on the other side.

However, overall, I find that the severance of some of the existing strong bonds with the paternal grandparents, and the more established strong bond with the Father’s partner, will likely be more detrimental to the Children than the offsetting opportunity to grow relationships with the Mother’s family and partner in Winnipeg. [ 114 ] On balance, the impact on other important relationships favours remaining with the Father. 5. Willingness to Support the Other Spouse’s Relationship with the Children (Section 16(3)(c)) [ 115 ] Both parents are willing to support the other spouse’s relationship with the Children.

This is obvious from the Mother’s agreement to increase the Father’s parenting time after separation, including to accommodate his farming schedule, both parties’ agreement to the Settlement and the Judgment, the Modified 2225 Schedule, and the Father refraining from immediately enforcing the Judgment in favour of the Modified 2255 Schedule.

It is also clear, based on their respective approaches to the other’s parenting time in the event the Children reside with them, that both parents are willing to accommodate special parenting time in the other province as well as accommodating parenting time in the home province if the distant spouse visits. [ 116 ] This factor is neutral. 6. The Children’s Views or Preferences (Section 16(3)(e)) [ 117 ] Courts recognize that children’s views and preferences are an important consideration in determining parenting and where a child should reside.

Children are now recognized as “full rights bearers” and this includes the rights to have their views taken seriously. Research has found that children want to have a voice, want to be listened to and heard, and to have their views respected and believed. The views and perspectives of the child are significant factor for a judicial decision about the child’s best interests, but they are not determinative. See SK v DG , 2022 ABQB 425 at paras 162-164 RM v JS , 2013 ABCA 441 . [ 118 ] Section 16(3) (

e) of the Divorce Act provides that the court shall consider “the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained”. [ 119 ] I have no evidence of the Children’s views or preferences. I inquired of the parties whether, given the ages of the Children, the Court should make a decision without some information of their views and, in particular, whether the parent’s choice not to discuss the relocation with the Children in advance or to adduce evidence of the Children’s preferences, means those preferences “cannot be ascertained” as contemplated by section 16(3) (

e) of the Divorce Act . [ 120 ] It would be helpful to the Court to have a sense of the Children’s preferences. On the other hand, involving them in this process may be detrimental to them and put them in a loyalty bind. Courts should respect the decision of two active and caring parents not to involve young children in the details of these court proceedings or possible moves which may or may not be authorized.

Neither parent supported delaying my decision so that the Children’s views could be determined. [ 121 ] In my view, parents must recognize the interests of children and the benefits of giving them a voice (not a choice) in decisions that affecting their lives. However, I am satisfied that, in this case, the Court should not second-guess the parents’ agreed approach on this issue. I interpret section 16(3) (

e) of the Divorce Act to mean that, as long as there is no evidence that a failure to obtain children’s views will cause them specific harm, the children’s views “cannot be ascertained” when the parents agree that the views of children should not be ascertained and neither adduces any evidence of those preferences.

See, for example: VC v BH , 2021 ABQB 575 at para 54 ; KAB v RMB , 2022 ABQB 542 at para 274 . [ 122 ] There may be other cases where courts feel it is necessary to adjourn an application to get information about the children’s views because otherwise the court is unable to determine the children’s best interests: Nurmi at paras 13-14 . I am satisfied that this is not one of those cases. [ 123 ] This factor is neutral. 7.

Cultural, Linguistic, Religious and Spiritual Upbringing (Section 16(3)(f)) [ 124 ] The Mother testified that the Children struggle to develop relationships in their current area because the area is highly religious (Christian) and the family is not. This is contradicted by the Father’s evidence that the Children are doing well in school, have friends and are happy. Even assuming that Winnipeg has a more diverse religious or non-religious context, I give this factor little weight as there

is no tangible evidence that the Children will be unable to maintain or grow new friend or other relationships if they reside with the Father. [ 125 ] This factor is neutral. 8. Plans for the Children’s Care (Section 16(3)(g)) [ 126 ] Within this factor I consider several matters, including each parent’s plan in respect of their residence and home life, support networks, work / financial matters, school and education, community engagement and extracurricular activities. a. Residence / Home Life [ 127 ] The Father has an established residence that has served as the Children’s home for years.

The Children have known and bonded with his new partner. The large acreage property has ample space, with each child having their own bedroom, and is close to the Father’s work. Grandparents are available for after-school care while the Father finishes up his work. Two of the children have expressed their interest in the farming life. [ 128 ] The Mother does not yet have a concrete plan for the Children’s home life. She does not know where she is going to live longer term. Her new partner does not own a home, and she will not move in with him initially.

She hopes to purchase or rent a home with her new partner, who the Children are familiar with but have not lived with long term. The Mother has not provided evidence to establish what sort of home she or they will be able to afford. It is not yet known how close the home will be to her work or school. These details will need to be worked out once she has found a place to live. Until then, she and the Children would live with her mother.

There is not much evidence about the size of the maternal grandmother’s house, however she is able and willing to provide after-school care regardless of where the Mother ultimately resides and has shown she is willing to help out her daughter. The Mother’s partner is also available to assist with childcare in the morning before school if necessary, which the Mother says would save costs of before-school care. [ 129 ] The Mother’s lack of a concrete plan causes the Father concern. I agree it is a factor against the Mother’s application.

I understand and respect, as a practical matter, that the Mother has not fully engaged in finalizing her plans awaiting the outcome of this application. However, relocation applicants must remember that, under the legal framework noted above, to avoid the double-bind, the court will effectively assume the relocation is taking place when comparing the different scenarios: Nurmi at para 15 ; Divorce Act

section 16.92(2) . Thus, the lack of evidence about the relocating parent’s plan when they get there can work against the application, particularly where the burden of proof is on the applicant. Relocating parents should provide as much detail of their plans in the new location as reasonably possible, and should be aware of the risk of having evidentiary gaps in their plan if they wait for the application to be determined to crystallize their plans. [ 130 ] This factor favours the children remaining with the Father. b.

Support Networks [ 131 ] Support networks for parents and children are a critical part of a parenting plan, as the best interests of children are served when parents feel supported: Barendregt at para 19 ; RLF v STF , 2022 ABQB 492 at para 34 . [ 132 ] The Father has an established support network, which is predominantly his family and extended family.

There is no evidence that he struggles or does not get the support he needs, or that if the Mother was no longer in the area that he would not have sufficient support. [ 133 ] The Mother grew up in Manitoba and does not appear to have a lot of independent relationships or close connections in the Trochu / Three Hills area, which affects her well-being. By relocating back to where she grew up, she will likely improve her day-to-day support network by being close to her mother and brother, her new partner, and people with whom she grew up and went to high school in Winnipeg.

Her father will be only three hours away. [ 134 ] While the Mother’s personal situation will likely improve in Winnipeg, and is better for her than her remaining in Three Hills, that does not necessarily mean that, from the Children’s best interests perspective, it makes residing with her better than residing with the Father. I am satisfied that reasonable support networks would be in place in both scenarios. [ 135 ] This factor is neutral. c. Work / Financial Matters [ 136 ] The Father has reliable and long-standing employment as a 4 th generation farmer.

He works regular hours and, in the past, worked very long hours during seeding and harvest which made it impractical for him to be the primary caregiver during those phases of the farming cycle. However, his situation has changed and he now will be able to work regular hours during seeding and harvest so that having the Children in his care during those times is now feasible.

The Father did not adduce evidence of his income or financial situation. [ 137 ] The Mother has recently upgraded her education and I am satisfied is more likely able to find gainful full-time employment in Winnipeg than she is in the Trochu / Three Hills area.

The Mother’s financial situation should be improved once she finds employment in her field and, although she has not fully engaged in her employment search, am satisfied on her evidence she is likely to find work in Winnipeg. [ 138 ] The Father seems to criticize the Mother for not applying for jobs in the Trochu / Three Hills area – I give those arguments no

weight. The Mother is free to relocate and work where she wants to live, and second-guessing where she has applied for jobs is, in effect, a disguised attempt to put the Mother in the prohibited double-bind because it compares the relocation against the status quo :

section 16.92(2) ; Scott at para 11 . [ 139 ] For the same reason, however, the Mother’s argument that she can earn more in Winnipeg than she can if she stays in Three Hills is also misguided as an argument to support the Children living with her because it also offends

section 16.92(2) –the court is not comparing the scenarios of the Mother relocating versus the Mother not relocating, but with whom the Children should live assuming her relocation.

Therefore, unless the Mother can show that the Children’s overall financial situation or standard of living is better if they live with her in Winnipeg, the financial benefits to the Mother of relocating to Winnipeg is largely only relevant to her reasons for relocating (which is discussed elsewhere). [ 140 ] In this case, ultimately, there is insufficient evidence for me to conclude that the Mother’s likely improved personal financial situation in Winnipeg translates into the Children enjoying an improved standard of living if they relocate with Mother.

If the Children live with her, they will receive child support from the Father in an unproven amount. If the Children remain with the Father, the Mother’s improved financial situation will translate into higher child support payments to the Children by the Mother, also in an unproven amount. Neither party adduced evidence to allow the court to compare the financial standard of living the Children would enjoy in the two different scenarios. [ 141 ] This factor is neutral. d.

School and Education [ 142 ] In the Trochu area, the Children have been attending the same elementary school, and will be able to stay there until they graduate from high school. The Father knows several of the teachers. In Winnipeg, the school or schools the Children will attend will not be known until their residence is finalized. In the meantime, if necessary, they will attend the school the Mother attended as a child while they reside with the maternal grandmother.

I am satisfied that, while there will be differences in their experiences in the different scenarios, both schooling scenarios provide the Children with solid school programs and equivalent opportunities for support and success. [ 143 ] This factor is neutral. e. Community Engagement [ 144 ] There is little doubt that living a farming life with the Father near Trochu will provide a significantly different experience than living in a large urban centre with the Mother. However, there is no evidence to suggest

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