AB v MM, 2023 ABKB 377

Court of King’s Bench of Alberta Citation: AB v MM, 2023 ABKB 377 Date: 20230830 Docket: 4803 196260 Registry: Edmonton Between: AB Plaintiff - and - MM Defendant Restriction on Publication Identification Ban – See the Family Law Act ,

section 100. By Court Order, no person shall publish or broadcast information that may identify the children involved in this proceeding. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Corrected judgment: A corrigendum was issued on August 30, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Justice A. Loparco _______________________________________________________

Introduction [ 1 ] In this Application, AB (“the mother”), wishes to relocate the three children of the marriage from Leduc, Alberta to Holbein, Saskatchewan (“Mobility Application”). [ 2 ] MM (“the father”), opposes the relocation and seeks primary parenting in Leduc, but only if the mother relocates; if she does not relocate, the father is agreeable to the shared parenting arrangement continuing (“the father’s Application”). In the alternative, if the mother’s Mobility Application is granted, the father seeks specific parenting time, including one long weekend per month and six consecutive weeks in the summer.

Background [ 3 ] The parties began cohabiting on May 26, 2010, and were married on July 23, 2016. [ 4 ] There are three children of the marriage, C, K, and P, who, by the time this decision issues, will be aged 11, 9 and 5 (“the children”). The fourth child, B, is an adult and lives in Saskatchewan with an aunt. He is not the subject of this application. [ 5 ] The parties lived in Springbank, Saskatchewan with three of the four children until 2015, when they relocated to Leduc to pursue opportunities that would advance the father’s career. [ 6 ] The parties separated on January 1, 2022.

They continued to live in the same home until April 26, 2022, after which time they rotated equal time in the Leduc home pursuant to a week-on week-off nesting arrangement (“nesting arrangement”) that is reflected in the Interim Consent Order of Jerke J dated May 9, 2022 (“Interim Order”). [ 7 ] The mother has already been living half of the time in Saskatchewan with her parents but returns every second week to Leduc to exercise her parenting time. [ 8 ] The only issues are relocation and the resulting parenting arrangements.

While the mother also sought a Child Support Order, I decline to deal with this issue as the matter is contested and there was insufficient time allotted in the one-day

Summary Trial granted on an urgent and priority basis. I also did not receive complete submissions on the issue, particularly given that the parents are not in agreement with respect to whether B remains a child of the marriage. [ 9 ] After reading my decision, I urge the parties to agree on a Child Support Order, which they may provide to me for my signature.

Issues and Brief Conclusion [ 10 ] The Court must determine whether it is in the best interests of the children to relocate to Holbein with the mother or to remain in Leduc with the father, and the appropriate parenting arrangements that flow from that determination. [ 11 ] The mother’s Mobility Application to relocate the children is granted. The children’s needs for long-term stability and overall well-being are best served by moving with their mother, who was the primary parent for most of their lives.

The mother is best situated to address their healthcare issues, foster ongoing family connections with both families, and to ensure their social and educational needs are met. While it is not a determinative factor, I have also considered the limited information available about the expressed wishes of the two older children to attend school with their cousins in Holbein. [ 12 ] This was a difficult decision to make because both parties are loving and dedicated parents.

I recognize that there will be a significant impact on the children to be away from their father, grandmother, and all aspects of the community they have known for most of their lives in Leduc. A parenting arrangement that seeks to maximize time, to the greatest extent possible, with the father, is required, and is detailed further below. Burden of Proof [ 13 ] The Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp .) contains significant amendments with respect to the best interests of the child, parenting and relocation, which became effective March 1, 2021. [ 14 ]

Section 16.93 establishes which party bears the burden of proof to establish the best interests of the children on a relocation application. There are three ways in which the burden of proof may be allocated. [ 15 ]

Section 16.93(1) of the Divorce Act states that: 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. [ 16 ] Under s 16.93(1), the burden of proof would rest with the mother since the parties have substantially complied with the Interim Order, which provides that they spend equal time with both parents pursuant to a consent nesting arrangement which has been in place since April 26, 2022. [ 17 ] The Court, however, has discretion under s 16.94 to not apply the specific burden of proof where the order is an interim order,

as in this case. If a Court decides not to apply s 16.93(1), then s 16.93(3) will apply, resulting in both parties bearing the burden ofproving whether the relocation is in the best interests of the children. [18] I conclude that the parenting arrangement in place in this case was intended to be a temporary or short-term situation, pendingmore extensive consideration.

As the parties were at odds post-separation as to where the children should reside, their choice to maintainthe status quo in the matrimonial home pursuant to an interim consent order implies that they did so on the basis that such an agreementwould not prejudice either party’s legal rights or position. [19] Moreover, the purpose of an interim order is to establish a temporary parenting arrangement until the parties are able to cometo an agreement as to the best interests of the children or the Court has an opportunity for an in-depth assessment of the best interests ofthe children after hearing oral evidence: Hartley v Del Pero, 2010 ABCA 182 at paras 9 and 13. [20] Given the history of the parties’ relationship detailed below, the mother’s testimony that she only agreed to the Interim Orderas a “band aid” solution to settle things down until the mobility hearing, and the fact that it has only been in place for one year, I elect toexercise my discretion in this matter and hold that the burden of proof rests on both parents pursuant to s 16.93(3). [21] No presumption exists as to what is in the best interests of the children, which one or the other parent must rebut.

This meansthat the test is solely based upon an assessment of the best interests of the children, in accordance with the factors enumerated inthe Divorce Act. Sequencing of Applications [22] There is a Mobility Application by the mother and a Cross-Application by the father for primary parenting, which he states isonly relevant if I deny the Application and the mother moves to Saskatchewan. His preference is to have the shared parenting regimecontinue. [23] I am unable to consider the father’s Application concurrently with the Mobility Application.

As discussed further below,pursuant to s 16.92(2), I am prohibited from considering whether the mother would move or stay (or, in this case, if the status quo of herreturning every second week would continue) if her Mobility Application were to be denied. I nevertheless have no information abouther intentions in this regard. As such, the logical sequence of these applications is to decide on the Mobility Application first. Had it beendenied, I would have required more information on the mother’s intentions before considering the father’s Application.

Best Interests of the Children Legal Framework [24] The Court has jurisdiction to authorize or reject the application to relocate the children: Divorce Act, sections 16.1(7), 16.9,and 16.91-92. [25] In Gordon v Goertz, [1996] 2 SCR 27, (SCC) [Gordon], the Supreme Court of Canada set out a frameworkfor determining what is in the best interests of the child in mobility applications.

Recent amendments of the Divorce Act have largelycodified the Gordon principles, with some exceptions. [26] In decisions about relocation and parenting, the Court can only consider the best interests of the children and must giveprimary consideration to the children’s physical, emotional and psychological safety, security and well-being, as required by ss 16(1) and(2) of the Divorce Act. [27] While there is no limit to what the Court may consider, it must consider certain expressly legislated factors: Divorce Act, ss16(1) - (4) and (6), and s 16.92: Barendregt v Grebliunas, 2022 SCC at paras 153-154 [Barendregt].

Further, the Court must notconsider certain factors in certain circumstances: ss 16(5) and 16.92(2). [28] The s 16 factors (invoked per ss 16.92(1)) are:

(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contactorder.

(2) 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.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any otherperson who plays an important role in the child’s life; (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (

d) the history of care of the child; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (

h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order. [ 29 ] The new Divorce Act confirms the “best interests of the child” test for mobility applications, and per the new s 16.92, adds a handful of new factors to consider:

(1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in

section 16, (

a) the reasons for the relocation; (

b) the impact of the relocation on the child; (

c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons; (

d) whether the person who intends to relocate the child complied with any applicable notice requirement under

section 16.9 , provincial family law legislation, an order, arbitral award, or agreement; (

e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside; (

f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision- making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and (

g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

(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. Legal Analysis

Part 1: Material Change in Circumstances [ 30 ] As noted by Marion J in Lemay v Lemay , 2023 ABKB 303 [ Lemay ], since s 17(5.2) of the Divorce Act has been enacted, which provides that “the relocation of a child is deemed to constitute a change of circumstances…,” it has been interpreted, when read together with sections 16.9 and 17(5), to mean that the Court does not need proof of a change in circumstances beyond the proposed relocation application (citations omitted). [ 31 ] There is therefore a deemed change in circumstances so long as the proposed move meets the definition of a “relocation” under the Divorce Act , which means that the change in place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility is likely to have a significant impact on the child’s relationship with a person who has parenting time, decision-making responsibility or an application for a parenting order or contact with the child under a contact order. [ 32 ] I am satisfied that the proposed move to Holbein, Saskatchewan constitutes a relocation under the Divorce Act as it will significantly change the father’s parenting time both pre-separation and under the Interim Order and it will have a significant impact on the children’s relationship with their father.

Summary of Parties’ Positions [ 33 ] The mother’s position is that it is in the best interests of the children to move to Saskatchewan, for the following main reasons: o They would be relocating to a place they are familiar with; o The family considered moving to Saskatchewan just prior to separation to be closer to family; o The mother has maintained a close relationship with her family in Saskatchewan and travelled there frequently with the children to see them; o B has moved to Saskatchewan and lives with her sister.

He has a close relationship with his siblings, and they would benefit from more time together; o Her family is tight-knit, and the children have cousins the same age; o They would have assistance from her parents, including her mother who ran a daycare for 10 years, and her extended family; o The children would go to school with their five cousins, which they look forward to; o The family has many celebrations, special events, outdoor activities all year long that the children would benefit from attending; o The mother would have more time to spend with the children based on her flexible work schedule; o The mother was the primary caregiver for most of the children’s lives, and is in tune with their various physical, emotional, and special needs; o The mother would have better earning potential, greater financial resources, and improved overall quality of life in Saskatchewan with the children, including the opportunities to purchase land and build a home on her parents’ property and operate a business with her sister renovating rental properties; and o The children have little family in Alberta and the father’s family offered minimal support throughout the years. [ 34 ] The father opposes the Mobility Application for the following main reasons: o The family has lived in Leduc for the last 8 years and have grown up in the current home and neighbourhood where they have most of their connections; o He has been an engaged parent throughout and during the pandemic and is the primary parent and contact for their health and educational needs; o The children need consistency and stability, particularly given some special needs and concerns arising from the separation that need to be addressed in counselling; o The children have many extracurricular activities and close relationships with friends with whom they spend a lot of time; o The children are close with their grandmother, whom they see 3-4 times per week; she has an adjacent lot to the family at Gull Lake, and plans to move to a home in their neighbourhood; o The children have paternal aunts and cousins in the Edmonton area, with whom they share holidays and special occasions with; and

o All the children’s health care providers are in Leduc.

Part 2: Best Interests of the Children and s 16(3) of the Divorce Act The children’s needs (including stability) given their ages and stages of development (s 16(3)(a)) [ 35 ] C will be attending grade 8 in the fall. He was diagnosed with ADHD and emotional dysregulation. C has had the same doctor, dentist, and eye doctor his entire life. He has resided in the Leduc home since he was about 3 years of age. He has attended the same school since kindergarten in Leduc and works closely with the school counsellor and occupational therapists.

He has difficulty making friends but has one close friend in Leduc. [ 36 ] After separation, C was not doing well and engaged in some risky behaviour in his father’s care, including putting his truck in neutral and running away from it on a highway. Shortly after, he ran away from the family home. The RCMP were called to assist and recommended he be taken to the Stollery Children’s Hospital, which the father initially resisted as he felt he should see his regular counsellor instead.

C has been followed by a psychiatrist and a family doctor and is now excelling on his current treatment plan. [ 37 ] K has also attended the same school in Leduc since kindergarten. She will be attending grade 6 in the fall. She has been seeing the same counsellor for over a year and has had the same doctor, dentist, and eye doctor for her entire life. She attends group therapy at her school to assist with the separation and is supported by school counsellors. She has lived in the Leduc home since she was a baby. [ 38 ] P has lived in the Leduc home his entire life.

He has also seen the same medical practitioners since birth in the community. He has been assessed as needing additional supports, although none are currently in place, and is in pre-K in Leduc. [ 39 ] On balance, this factor favours the children remaining in Leduc to maintain stability in their external environment. Nature and strength of the children’s relationships with important people in their lives (s 16(3)(b)) [ 40 ] The children have a strong bond with both parents, the paternal grandmother, the maternal grandparents, and extended families on both sides. [ 41 ] This factor is neutral.

Willingness to support the other spouse’s relationship with the children (s 16(3)(c)) [ 42 ] The father appears to be resistant to cooperative co-parenting in that he has refused to accede to the mother’s requests to not sign the children up for regular activities on her parenting time; he then tried to make her feel guilty for not taking them to the activities he booked.

The evidence also reveals that the father unilaterally made himself the primary contact with the pharmacy and the doctors, but in cross-examination justified this as being necessary because he was the “locally” available parent. [ 43 ] He argued that the mother excludes him from activities and information about the children, but I have not found this to have been proved. [ 44 ] With respect to unilaterally signing the children up for activities during the mother’s time, his explanation in cross- examination is simply that he had a discussion with the mother and that it was necessary to keep them in the same activities for continuity.

However, he failed to address the crux of the issue, which is that he did not have her consent. He merely raised the issue and then proceeded to act in accordance with what he felt was best for them. His rationale was that he could continue to take them on his time, and then the mother could do what she wanted on her time.

However, this thinking is counterproductive to co-parenting as it sabotages the mother’s ability to govern her parenting time and puts her in the position of having to make the choice between reluctantly acceding to the father’s wishes on her time or forcing the children to miss activities and to suffer the consequences of being upset and not being able to progress in their activities. [ 45 ] In addition, the evidence demonstrates that the father refused the mother’s request to set up visits for the children with a family doctor in Saskatchewan and to transfer a child’s prescription to a pharmacy in Saskatchewan.

While the father offered the explanation that he was misled into believing the children could not have two family doctors and that he took issue with the prescription being transferred without his knowledge, these behaviours have caused unnecessary stress in the family and delayed medical care for the children. [ 46 ] The father’s unwillingness to see co-parenting as a team effort favours the mother’s Application.

History of Child Care (s 16(3)(d)) Parenting pre-separation [ 47 ] The mother argues that she was the primary caregiver until recently, but the father states that he has always been a co-primary parent. [ 48 ] The mother took maternity leave with each child, returning to various types and degrees of part-time work until the fall of 2020, when she began working full-time as an LPN. [ 49 ] As the mother worked part-time and went to school at times during the relationship, the father helped with morning and evening routines with the children.

He maintained a full-time job as a senior bank manager throughout their relationship and worked

regular day-time hours while the mother continued to care for the children during the day.

He is now a director in corporate finance. [ 50 ] Despite having regular work hours, and working from home for some periods of time, the father agreed in cross-examination that he has a demanding job with high expectations, and there were times he worked late, or had to entertain clients outside of work hours. [ 51 ] There is also a text message indicating that the father asked the mother to use sick days to help with the children at times when he had a meeting to attend. [ 52 ] The father also took a 6-month investment course during the relationship, which limited his ability to parent the children during his off-work hours. [ 53 ] During the pandemic, however, since the mother was working full-time, the father worked from home while the children attended online schooling in his care.

The grandmother and B would often assist with childcare. The father applied for a team lead position during the pandemic and had a conversation with the mother about her quitting her job to provide the family more support.

Parenting post-separation [ 54 ] After separation, the parties continued to live in the same home until April 26, 2022, after which time they rotated equal time in the Leduc home pursuant to a week-on week-off nesting arrangement reflected in the Interim Order. [ 55 ] During the mother’s week off, she lives at her parents’ home in Holbein, and works as an LPN in Shellbrook up to 70 hours per week as a casual employee.

When she returns to Leduc for her parenting time, she lives in the family home and parents the children alone. [ 56 ] Overall, I find that the mother was the primary parent for most of the children’s lives. This favours them moving with her. The children’s views or preferences (s 16(3)(e)) [ 57 ] Section 16(3)(

e) states that the Court shall take into consideration the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained. [ 58 ] Even young children are entitled to a voice in legal matters that affect them. As I discussed in SK v DG , 2022 ABQB 425 at paras 158ff , access to justice for children is a fundamental right and a prerequisite to the protection of their human rights pursuant to the UN Convention on the Rights of the Child , 20 November 1990, Can TS 1992 No 3 (entered into force 2 September 1990) ( UNCRC ).

The UNCRC was ratified by Canada on December 13, 1991. [ 59 ] Courts often hear and consider the views and preferences of the child, in a variety of forms, in making a decision that affects them. When determining the best interests of the child, courts must take a child-centered approach and consider the impact of the decision from the child’s perspective by hearing about their interests, needs, experiences, and relationships. [ 60 ]

Article 12.1 of the UNCRC provides support for the right of a child to be heard in proceedings affecting them, and a child centered approach when determining the best interests of the child: 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. [ 61 ] Chil dren want to have a voice, be listened to, be heard, and to have their views respected and believed. They want to be treated as individuals, told what is happening and be given clear, age-appropriate information. They want flexibility in arrangements and decisions to be child centered rather than adult convenient.

Children want to say how they feel and what matters to them, and how they see the future. [ 62 ] There is very limited information before this Court with respect to the children’s views regarding the proposed relocation. I understand that K’s counsellor recommended that the discussion take place with her present as the counsellor knew that the mother filed a mobility application, but the father was opposed to this.

Hearing the voice of the children through a counsellor who has had the opportunity to explore the question in a safe space, and with child-appropriate language, would have been valuable. [ 63 ] The mother’s Affidavit indicates that P loves spending time with his maternal grandparents and wants to spend more time there, and that C and K are excited at the idea of possibly attending school with their cousins and staying at their grandparents’ place, where there is plenty of space to explore and have fun.

There is evidence that the children miss their brother B and want to spend more time with him. [ 64 ] The children’s enjoyment of their time in Saskatchewan is not refuted by the father; however, I have no context to these hearsay statements, and have no ability to assess what information they are relying on. [ 65 ] All children who can express their views have a voice, but not a choice in legal proceedings. The weight given to a child’s views is dependent on factors such as the child’s age, maturity, and motivation.

While their expressed views are of limited value in this case for the reasons stated, their voice still matters in allowing me to evaluate how they might react to a move to Saskatchewan. [ 66 ] Given the extensive visits to Saskatchewan over the course of their lives, and the strong bonds with their extended family, I

can infer that the children would enjoy spending more time with cousins the same age. It is one factor in the overall best interests’ analysis. Cultural, Linguistic, Religious and spiritual upbringing (s 16(3)(f)) [ 67 ] While there is no evidence of language or religion, the mother describes her side of the family as having many gatherings year-round, including, Sunday visits, camping, fishing, swimming, canoeing, kayaking, quadding, wiener roasts, and other large family events. Every Christmas, her family books the hall in Crutwell for a celebration.

They have annual summer camping trips, which include a large extended family of aunts, uncles, and cousins in the same age range as the children. [ 68 ] As the family has visited Saskatchewan frequently during their lives, they have been exposed to these family traditions. [ 69 ] While the father deposes that the children have spent time with his sisters and his extended family on holidays, the visits do not seem to form part of a family tradition. [ 70 ] Overall, the ability to participate in the frequent family traditions with the mother’s side of the family favours relocation.

Plans for the children’s care (s 16(3)(g)) [ 71 ] Residence – The mother states that if the children are permitted to move, they will initially reside with her parents in separate living space in their home until she can buy land on the same property and build a home there or find another home to rent or purchase in the area. She deposes that she will be able to change her working hours to 7 am to 4 pm daily to accommodate being the primary parent. [ 72 ] Support networks – There is a large extended family in the Briarliea community where the proposed school, Wild Rose Public School, is located.

The children would attend school with five of their cousins. The children also have family in Crutwell. The bus route goes past the relatives’ homes in various surrounding communities. The extended family have offered to assist with childcare . [ 73 ] The children’s older brother B lives in Saskatchewan. The children have a close relationship with him. [ 74 ] Finances – The mother deposes that she would be able to earn more money in Saskatchewan and to have the opportunity to purchase land from her parents, on which she would build a home with her brother’s assistance.

She earns $36.16 per hour in Saskatchewan and works up to 70 hours per week as a casual employee. She deposes that her salary is higher than the $29.60 per hour rate she would earn in Alberta. [ 75 ] Education – The children would attend Wild Rose Public School, which the mother deposes has learning improvement plans for the children who require them.

The school also has an occupational therapist who could work with C. [ 76 ] Extracurricular activities - Wild Rose School has several extracurricular activities such as track and field, basketball, volleyball, swimming, and cross-country running. [ 77 ] Although the mother does not have a concrete timeline for when she will move the children to a more permanent residence, the plan is detailed and ensures that the continuation of the children’s care will be maintained at a level they are accustomed to.

Willingness and ability of the parents to meet the children’s needs (s 16(3)(h)) [ 78 ] I find that both parents are good and loving parents, who meet their children’s needs.

The mother expressed some concerns about the father not taking appropriate care of the children’s hygiene, failing to recognize illnesses, not ensuring homework is completed, allowing the children to use electronics frequently, minimizing C’s dangerous behaviours, resisting the children’s need for counselling, having the children cared for by others during his parenting time, losing his patience and being overwhelmed with parenting, and treating B differently than the other children. [ 79 ] The mother deposed that C put the father’s truck on neutral on the highway and ran out onto the highway.

A few days later, he ran away from the home and into traffic in Leduc. The RCMP were called and recommended C attend the Stollery Children’s Hospital mental health department. The mother states that the father believed she was overreacting. [ 80 ] The father deposed that he has experienced some challenges in the transition to being a primary parent and agrees that the children have also struggled.

He provided reasonable explanations for the situations that concerned the mother. [ 81 ] However, I find that the father tends to overstate his role over the years and to minimize the mother’s involvement with the children. In reviewing the history, I find it implausible that he could have worked as a senior manager full-time in a demanding job, engaged in regular client events in the evenings, taken an investment course, and acted as the primary parent in the manner he describes.

While I do not dispute that he was an engaged parent during his time off work, assisted with morning and evening routines, and attended many appointments and activities, it is unlikely that he took on an equal role to the mother, who was largely a stay-at-home parent during day-time hours. [ 82 ] The father has provided good and loving care to the children in the shared parenting regime post-separation, but he requires a significant amount of assistance from his mother. [ 83 ] Both parties argue that the other parent is not as engaged or as attentive to the children’s needs as the other.

Generally, the disagreements can be chalked up to different parenting styles. [ 84 ] The mother tended to focus on trivial matters about the father’s parenting (e.g., including photos of laundry piles and a dirty bathroom), to show him as an inappropriate parent. This strategy was addressed in CZ v RB , 2019 ABCA 445 at paras 30 and 32 :

Parenting trials are difficult. Far too frequently, parents spend disproportionate time and energy attempting to demonstrate why the other parent is deficient instead of focussing on the parenting arrangement that is in the best interests of the children. … [ 85 ] There is no such thing as perfect parenting; parents are expected to be good caregivers and to act in the children’s best interests, but they are permitted to make mistakes. Both parents clearly love their children, and both would meet the standard of a good parent.

Willingness and ability to communicate and cooperate on matters affecting the children (s 16(3)(i)) [ 86 ] Despite the disagreements noted above over scheduling of activities and the father listing himself as the primary contact with the pharmacy and the school, I find the parties communicate reasonably well, are polite in their exchanges, both wish to be present for the children’s activities and parent-teacher meetings and are good at providing each other with updates.

Family violence and its impacts (s 16(3)(j)) [ 87 ] The mother argues that family violence has occurred through controlling behaviour by the father throughout their relationship. She also states that the father has compromised C’s safety by not reporting, underreporting, or hiding the incidents when he ran away, which involved proximity to dangerous roads. The father’s explanation for his reaction to various situations noted in the mother’s Affidavits was reasonable and I do not find family violence has been established.

Relevant proceedings, orders, conditions or measures (s 16(3)(k)) [ 88 ] As discussed, the Interim Order provides for a week-on week-off nesting arrangement in the matrimonial home in Leduc. [ 89 ] I now turn to the consideration of the additional factors with respect to relocation to determine if the best interests of the children continue to support primary care with the mother in respect of the proposed relocation to Saskatchewan.

Section 16.92 Relocation factors [ 90 ] The recent amendments to the Divorce Act have established additional factors that the Court must consider in a relocation application with respect to the best interests of the children. [ 91 ] Under s 16.92(2) of the Divorce Act , in deciding whether to authorize relocation of the child, the court shall not consider, if the child’s relocation was refused, whether the moving parent would relocate without the child or not relocate.

The purpose is to avoid the “double-bind”, since the “risk is seemingly selfish if they say ‘yes’, or not committed to going if they say ‘no’”: Nurmi v Nurmi , 2023 ABCA 123 at para 15 . To avoid the double-bind situation, courts must not compare the proposed move against a scenario where the parent does not move, but rather the two alternatives assuming the parent does move. [ 92 ] The mother is entitled to make her own decision on where she would like to reside now that the parties have separated.

Thus, while the father supports the continuation of the current parenting arrangement should the status quo remain, the Court is not permitted to make its decision on the basis of the status quo . I must assume that, regardless of my decision, the mother will relocate permanently and my decision on the best interests of the children and parenting rests upon that assumption.

The additional factors must be considered in the context of the mother moving to Saskatchewan and the father remaining in Leduc, considering each of the situations where the children primarily reside with one or the other in those respective locations. a.

The reasons for the relocation [ 93 ] This factor is a significant shift from the previous law under Gordon , where consideration of the reasons for relocation was only done in the exceptional case of an impact upon that parent’s ability to care for the child. [ 94 ] The mother submits that a relocation of the children to Saskatchewan is in the best interests of the children as they would have more family support and financial resources, while still meeting their education and medical needs. [ 95 ] The father opposes the move on the grounds that the move would provide greater financial stability.

Even though the evidence shows that the mother earns $36.16 per hour in Saskatchewan, versus $29.60 in Alberta for the same type of work, he states that she is a casual employee and works approximately 50-70 hours every two weeks, dependent on the number of shifts available. He also points to her tax returns, which show she earned $52,094 in 2021 when she worked for Alberta Health Services, versus her 2022 earnings of $53,442 from her work in Saskatchewan.

However, his position ignores many other factors, including her ability to change her work hours to work a regular 7 am- 4 pm shift, Monday to Friday, improving her quality of life and be available for the children, and her ability to apply for other available jobs. There is no evidence that a similar position is available for her to return to Alberta, so the comparison is moot. [ 96 ] Moreover, she deposed to the opportunity to purchase land from her parents and to build a house with family help on the same property, as well as the inherent cost savings from having her family nearby to assist with childcare.

Holistically, all the factors together contribute to a finding that the family’s quality of life would be improved as a result. [ 97 ] The mother expressed that she could provide a better life for her children in Holbein with an extended support network, including her parents with whom they would initially live, and many aunts, uncles, cousins, and extended family in the area who are available to assist.

In addition, the children would attend school by taking the bus with their cousins. [ 98 ] In contrast, the children’s support network in Leduc consists of a limited group of friends, the paternal grandmother, and the father’s family, all of whom have not provided regular assistance to the family prior to their separation.

[ 99 ] The relocation may assist the mother in becoming self sufficient, as she will be able to live with her parents for a period of time, while saving money to purchase land on which to build a home. Having greater stability in one home, rather than the status quo of working up to 70 hours in one week in Saskatchewan, then travelling back to Leduc to reside in the matrimonial home for her parenting time, is not a sustainable long-term solution that should be expected of her. [ 100 ] The mother is entitled to work a regular work week and to have time for other activities. She has deposed that she could accept work shifts from 7 am- 4 pm to accommodate the children’s

schedule or could apply for other jobs with work hours of 8 am- 4 pm in Saskatchewan. Her willingness to take on a job and stay in Leduc or continue with the status quo if her application is denied is irrelevant at this stage. [ 101 ] Moreover, the mother has the ability to go into business with her sister renovating rental properties in Saskatchewan. Very little information on the income potential from this venture was provided and as such, it does not contribute to my assessment. b.

The impact of the relocation on the children [ 102 ] The relocation will have a significant impact on the children regardless of whether they go to Saskatchewan or remain in Alberta. As with any long-distance relocation, the move will have the impact of reducing the children’s time significantly with whichever parent they do not reside. [ 103 ] If the children move to Saskatchewan, it will have the positive impact of bringing the children closer and more frequently in contact with their older brother, and their maternal relatives.

The father does not refute the evidence of the close familial ties in Saskatchewan and the enjoyment that the children get from their frequent visits there. [ 104 ] While the children would have some adjustments to a move into their grandparents’ home, I am satisfied that the living arrangement will not be detrimental to the children. The mother testified that the children would have a separate space in her parents’ home, which they are already familiar with, but that the intention is to move out.

Moreover, she deposes having spent considerable amounts of time there with the children, both during maternity leaves, long weekends, summers, and holidays, along with time during her parenting time. [ 105 ] The mother also deposes that because of the strained relationship the father had with his family in Edmonton, he previously looked for work in Saskatchewan with the intention of moving the family back to be closer to her family.

This evidence was not refuted by the father, although he states that the paternal family bonds are also strong. [ 106 ] If the children remain in Alberta, there is the positive impact on the children having the same or more opportunity to nurture their strong relationships with their paternal relatives, and in particular, their grandmother, whom they see regularly, and with whom they have a strong bond, and their extended family. [ 107 ] If I grant the application, the children would also be removed from their current support network, medical professionals, and circle of friends, having lived in Leduc since 2015.

This is especially the case for C, who is being treated by a psychiatrist, a family doctor, counsellors, and an occupational therapist in the Edmonton area and through his school. Dr. Morrissette, his psychiatrist, noted that it would be beneficial for C to continue with the school supports currently in place. It is undeniable that C’s best interests are served by considering ways to foster stability in his life. [ 108 ] The evidence demonstrates that C has difficulty making friends and has one friend in Leduc.

However, he appears to have a close relationship and is at ease with his cousins in Saskatchewan, having known them since birth. From this, I infer that on balance, his existing family bonds and connections in Saskatchewan may offer the comfort and stability he needs to attenuate any transitional social anxiety. [ 109 ] Moreover, it appears that while Dr. Morrissette officially diagnosed C with ADHD in 2022, and provides ongoing support, I have no evidence about the need to continue with regular visits.

C was previously screened for ADHD when he was about 6 or 7 years old and has been under regular treatment for ADHD by his family doctor for the last 4-5 years, including medication and monitoring, and has excelled under this treatment. As there has been a period of stability, it seems probable that a new family doctor in Saskatchewan could continue with the treatment plan with minimal disruption. [ 110 ] While P has also been assessed as requiring supports, he has not established any connections with specific professionals yet and thus, I conclude that the disruption to his life in this regard would be minimal.

Similarly, while K sees a counsellor and attends group therapy at the school, she does not have any special needs and there is no evidence about any detrimental impacts that a move would have on her psychologically. [ 111 ] Overall, this situation is difficult to reconcile since C would suffer a greater impact than the others. However, the mother states, and the father agrees, that all the children have a strong bond with their cousins in Saskatchewan.

I believe that in the long run, the stability of familial relationships is stronger than the bond C now shares with his friend and other professional contacts in Leduc. [ 112 ] In terms of the children’s education, a move to Saskatchewan would result in disruption in the children’s education and the supports they receive through school. However, the mother has testified that Wild Rose School, where she attended as a child, has OT supports available for C as well as counsellors to assist C and K with the transition.

She also contacted a psychology clinic about providing ongoing and psychological supports for C and K. P would also have the supports he requires as he commences kindergarten. Furthermore, she states that the school provides an array of extracurricular activities that the children can choose from. [ 113 ] In addition, the children would have peer support from their cousins and after school support from their aunts, uncles, and grandparents, who are willing to care for them and assist with appointments. [ 114 ] Finally, the impact on the children’s health must also be considered.

The mother has deposed to the children not being properly cared for at times, including a disheveled and dirty home when the father is parenting, a failure to recognize medical issues that arise and

the father pushing the children to attend activities when they are ill, and the two situations when C ran away. She feels that the father minimizes the danger inherent in the situations and ignores the possibility of underlying problems that require further assessment. [ 115 ] The father states that he does not oppose further assessments for the children, but believes the mother exaggerates the danger of certain situations.

The father has been engaged in various appointments, even at times on his own initiative, but to a lesser degree than the mother. [ 116 ] As noted above, I do not find that the father has failed to provide for the children’s needs; however, he is less attentive and has minimized dangerous situations in the past. [ 117 ] The mother is an LPN, but in addition, she was the primary caregiver for most of their lives and principally in charge of managing their health care appointments. This favours the children moving with her to Saskatchewan. c.

The amount of time spent with the children by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons [ 118 ] The family moved to Alberta from Saskatchewan in 2015 to advance the father’s career prospects. [ 119 ] When he was able, the father would assist with the children at both the beginning and end of the day, as well as would engage in planning and taking them to various activities and appointments.

He would also engage in recreational and other activities with the children. [ 120 ] In approximately the fall of 2020, the mother went to work full-time while the father worked from home and cared for the children. Given the children’s ages, and the demanding nature of his work, for C and K, this mostly involved ensuring they were set up for online learning and tending to issues that arose.

The oldest child, B, was also home and would often look after his younger siblings and assist with the daily tasks. [ 121 ] There is a dispute as to whether the father asked the mother to give up her full-time work in 2021 to assist with the children, or whether she did so on her own volition. In either case, she ultimately reduced her hours of work to be home a little more with the children until May 2022, when she took a job in Saskatchewan near her parents’ home, and the parties commenced the nesting arrangement. [ 122 ] The father returned to the office full-time.

He has regular hours, which allows him to meet the needs of his children. If the children were in his primary care, he would rely on his mother who currently lives in Red Deer to assist him with schooling support or childcare. [ 123 ] Currently, pursuant to the Interim Order, the parents share decision-making and have equal parenting time on a week-on week- off rotating basis.

However, this Order was specifically made to be interim pending the outcome of the Mobility Application. [ 124 ] Although the father has intermittently taken on a more active parenting role, I find that following the birth of the children, the mother was mostly a stay-at-home mother, despite taking online courses towards her LPN and part-time work. The father worked full- time and was the main income earner for the family.

When the household demands became challenging, it was the mother who scaled back her hours of school and work. [ 125 ] The father has always worked full-time, Monday to Friday, with weekends off.

While he worked from home for 1-2 days per week and took on primary care of the children in 2020 and part of 2021 during the pandemic, and he cared for the children at times when the mother was out of town, this does not change the overall parenting regime during the course of the parties’ relationship. [ 126 ] The mother parented mostly during the day and alone in the evenings when the father worked late, took out clients, or took an investment course.

While the father claims he was the primary parent when he was working from home, this is hard to reconcile with the fact that he describes his job as high level and busy.

It appears more than likely that he was physically present and would have to respond to the children’s basic needs, but that they were largely self-directed in their online learning or were watched over by their older brother B for much of the time. [ 127 ] I infer from the evidence provided that the mother took care of most of the responsibilities for the children and spent the most amount of time with them. [ 128 ] While the father has been able to meet the needs of the children while in his care, the fact that the mother has provided primary care throughout the marriage and has been willing to reduce her work hours when needed, has resulted in a stable parenting arrangement for the children over the last few years. d.

Whether the person who intends to relocate the child complied with any applicable notice requirement under s 16.9, provincial family law legislation, an order, arbitral award, or agreement [ 129 ] The parties agree that the notice requirement was complied with. e. The existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside [ 130 ] The Interim Order specifies that since April 26, 2022, the children are to reside in a shared, nesting arrangement in Leduc pending the outcome of this Mobility Application.

f. The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses [ 131 ] The mother submits that her proposed parenting arrangement is reasonable. She has proposed that the father would have parenting time for six consecutive weeks in the summer, Victoria weekend, spring break, 10 days over Christmas break, and that they would alternate all other holidays.

While it is unavoidable that a move to Saskatchewan will result in a significant impact upon the father’s parenting time, the mother’s proposal for a holiday

schedule does not account for the reduced time the father would have during the school year and requires the father to go for long periods of time without seeing the children. [ 132 ] The father, on the other hand, proposes that if the children relocate, he be granted 6 consecutive weeks during the summer, one long weekend per month, half of Christmas break, and alternate Thanksgiving and Easter breaks, along with reasonable and generous telephone and electronic communication access. If I were to add in spring break, this

schedule is more reasonable as it would give the father at least monthly visits with the children, and extended time during their vacations, allowing him to coordinate his vacations

schedule so that he could have quality, uninterrupted time with them. [ 133 ] The mother has proposed that the meeting point for the exchange of the children be Lloydminster, a point approximately halfway between the parties. That plan considers driving and splits the burden of driving, in both time and resources, between the parents. Moreover, the mother has offered to reimburse the father for his gas expense for his drive to Lloydminster. g.

Whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance [ 134 ] While there has been some variation, I find that the parents have been compliant with the existing Interim Order and are likely to be compliant with any order granted.

Conclusion [ 135 ] In decisions about relocation and parenting, the Court can only consider the best interests of the children. [ 136 ] 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. While the cases cited by the parties provide some general guidance, I do not find any of them particularly instructive since the matrix of factors differs in each case. [ 137 ] The Court is left to holistically determine what is best for all the children’s lives.

Despite the recognition that a move would disrupt the children’s connections to their community, I believe that a change to the historical pattern of the mother as primary caregiver and the support and routines that are concomitant with that parenting status would result in a significant disruption to the children and thus a negative impact on their need for stability. The history of care for the children is important to the consideration of stability, including the psychological and emotional well-being of the children.

As noted by Marion J in Lemay , “Courts must look not only at the immediate instability, but the potential for stability or instability in both scenarios moving forward”. [ 138 ] The children’s relocation would cause immediate and significant instability in their lives, removing them from the only community and support network they have known. In the long-term, however, I believe the children’s lives would be stable and happy. [ 139 ] In

summary, the loss of connections to the community supports and friendships that C, K, and P currently have would not be detrimental in the long run since the mother has demonstrated that similar supports are available in Saskatchewan, along with greater familial connections and stability in her care. [ 140 ] I conclude that relocating the children to Saskatchewan with their mother is in their best interests for the following reasons: • the children are familiar and comfortable in Saskatchewan given the family lived there, having moved to Alberta from Saskatchewan in 2015, and spent the majority of their holidays and long weekends there, and then looked for opportunities to move back to be closer to the mother’s family; • the mother was the primary caregiver from the children’s births until 2020; • the children’s move would not greatly impact their friendships in Leduc or any commitment to extracurricular activities; • the children have a close bond with their brother and the extended maternal family in Saskatchewan, including cousins in the same age range; • the bond to family in Alberta is not as strong as that in Saskatchewan; while the children spend some holidays and special occasions with aunts and cousins, they are not in the same age range; • the bond to the paternal grandmother is strong, but would continue during extended summer vacations, long weekends, and holidays, where they could spend time at Gull Lake and in Leduc where the grandmother plans to move to; • the familiarity with the grandparents’ home and the plan to buy land and build a home nearby; • the willingness of the mother to facilitate generous access to the father and his family, including for an extended period in the

summers; • the mother’s ability to recognize and respond to the children’s healthcare and educational needs; • the likelihood that the mother would receive greater support in Saskatchewan; • the availability of educational plans, OT, and psychological care and support for the children in Saskatchewan; • the children would have the peer support of five cousins with whom they would attend Wild Rose School. The bus route would take them past their relatives’ homes, where they would have additional childcare and support, if needed; • the mother’s flexibility to pursue hours of work that accommodate the children’s

schedule and ability to earn a higher hourly rate in Saskatchewan; • the children’s ages, at which new friendships and sports connections can usually be easily formed; • the mother’s demonstrated abilities to care for the children in every sphere of life; • the father’s challenges in balancing work and childcare, and his heavy reliance on his mother for assistance; and • the ability to provide long weekends, holidays, and extensive time in the summer with the father, when he could arrange vacation time from work and provide dedicated time to the children. [ 141 ] The mother has met the burden of showing that the move is in the children’s best interests and the father has failed to discharge his burden to demonstrate that the proposed move is not in the children’s best interests. [ 142 ] I see this decision as squaring well with the children’s physical, emotional and psychological safety, security, and well-being. [ 143 ] In accordance with s 16(6), the Court must also give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

This does not require equal time or a shared parenting arrangement. Rather, it is as much time as possible given the circumstances and which is in the best interests of the children. [ 144 ] In granting the mother’s Mobility Application, I have set out parenting arrangements below that will maximize the children’s time with the father in a manner consistent with their best interests. Although some of the parenting arrangements do not accord with what either parent seeks, I believe that it furthers the best interests of the children by minimizing their time away from school. 1.

The mother will have primary parenting of the children. She shall take all appropriate steps to ensure appropriate continued medical care, OT, and counselling for the children. 2. The mother may relocate the children to Holbein, Saskatchewan. The parents shall make arrangements to have this transition occur with a focus on the children’s best interests. Any such arrangements will include the father having the children for six weeks this summer immediately prior to their departure to Holbein. 3. The parents will continue to share joint decision-making authority for their children.

Whether or not the other parent has requested the information, the parents shall exchange information in a timely manner regarding the children's care, scheduled activities, educational and medical providers, and important milestones and appointments, medical and otherwise. Each parent is entitled to attend medical or school appointments or events or extracurricular activities.

Each parent shall be entitled to receive copies of all medical, dental, school, and other reports related to the children and shall be entitled to consult with the children's teachers, caregivers, physicians, dentists, and other healthcare providers concerning the children. Each parent shall be listed on all documents pertaining to the children. 4. The father shall have parenting time on one long weekend per month, which may include the holidays of Labour Day, Thanksgiving, Family Day, Good Friday and Easter Monday, and Victoria Day each year so as to minimize any need for missed school days.

He shall propose the weekends to the mother by July 1 st for the September to December school term, and by October 1 st for the January to June school term. The mother shall not unreasonably deny the father’s requests, even if the children will be required to miss a day of school. 5. The following holiday

schedule shall override the above parenting time:

a) The parties shall equally split the Christmas holidays, with the father to have the portion of holidays covering Christmas Eve on odd years and the mother to have that portion on even years.

b) The father shall have spring break each year and any extended fall break. During the month of spring break or fall break, this will be in place of the long weekend parenting for that month.

c) The father shall have the first six consecutive weeks in the summer. The mother shall have the remainder of the summer holidays.

d) The father may ask for any special days such as Father’s Day, a family birthday, or holidays to coincide with his parenting time, which requests shall not be unreasonably denied. 6. The exchange of the children will occur in Lloydminster, at a location to be determined between the parents. Each party will bear their own costs of such travel. Alternatively, if the parents agree, the children may fly between Saskatoon and Edmonton and each parent shall bear half the cost of flight travel for the children.

The father’s costs of such travel – by car or air- shall reduce the child support amounts that he is required to pay. 7. When one parent has parenting time, arrangements shall be made for reasonable and generous parenting time by the other

parent via phone calls and video conferencing, for a minimum of four times per week at a time that works with the children’s school

schedule and the other parent’s work schedule. In addition, the mother will facilitate phone calls and video conferencing with the father’s extended family on a regular basis, to assist the children in maintaining the strong relationships they have with their paternal relatives. 8. The father may have additional parenting time with the children in Saskatchewan, should he choose to travel there providing said parenting time does not unreasonably interfere with the children's schooling and he provides the mother at least five days’ notice. 9. The parties by agreement may alter these parenting time arrangements.

Costs [ 145 ] The mother is entitled to her costs of the Mobility Application. Heard on the 26 th day of May, 2023. Dated at the City of Edmonton, Alberta this 27 th day of June, 2023. A. Loparco J.C.K.B.A. Appearances: James Arendt Forum Law Group LLP for the Plaintiff Melissa Lefebvre Callioux Law for the Defendant _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Justice A. Loparco _______________________________________________________ Plaintiff’s counsel’s name was amended.