S.L.F., Applicant/Respondent on Motion - v. -, 2022 NBKB 235

FDSJ-447-21 2022 NBKB 235 IN THE COURT OF KINGS’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: S.L.F., Applicant/Respondent on Motion - and - T.K.F. Respondent/Applicant on Motion DECISION BEFORE: The Honourable Madam Justice M. Deborah Hackett AT: Saint John, N.B. DATE OF HEARING: November 21, 2022 DATE OF DECISION: December 1, 2022 APPEARANCES: Applicant – Kimberly A. McCurdy Respondent – Chelsea L. Seale Hackett, J.: INTRODUCTION [ 1 ] This is the Court’s decision on the motion filed by the father August 24, 2022.

The father requested an order prohibiting the mother from relocating to Fredericton with the parties’ child G.L.F., born […] 2014 (referred to herein as “G.”). [ 2 ] The motion was heard November 21, 2022. The mother moved to Fredericton from Grand Bay-Westfield and G. started school there in September 2022. [ 3 ] Therefore, the issue to be decided is whether or not the Court should order G. be returned to the Grand Bay-Westfield area pending the final hearing of the application in this matter, scheduled for October 2023.

FACTS [ 4 ] The mother also has a daughter F.N.F., born […] 2006 (referred to herein as “F.”). Her father lives in Fredericton. The mother has primary care of F. [ 5 ] The mother and F. moved into the home the father had purchased in 2005 in Grand Bay-Westfield (which shall be referred to as “the marital home”) in June 2014. The mother was pregnant with G. The parties were married in October 2015. [ 6 ] For a period of time after separation the parties continued to live in the marital home with G. and F. The father says the parties separated in January 2021.

The mother says they separated in May 2021. [ 7 ] The mother filed an application on August 12, 2021 seeking an abridgment of time for service on the basis the father was a risk to the children. She sought interim and final sole decision-making authority for G. and F. and an order the father have supervised contact with G. and no contact with F.

[ 8 ] She also requested an order for child support and sharing of special expenses for both children and spousal support, along with an order for interim exclusive possession of the marital home and household goods under

section 21 of the Family Law Act . She requested an equal division of marital property under the Marital Property Act. [ 9 ] The mother also asked for an order under

section 81 of the Family Law Act as well as an order requiring the father to undergo a psychological or risk assessment. [ 10 ] The father filed an answer on August 27, 2021. He disagreed with the mother’s claims he posed a risk to the children or with her request for an assessment. He disagreed with the mother’s request for sole decision-making for G. or supervised contact or parenting time on his part with G.

He sought primary care and sole decision making authority for G., with parenting time to the mother on a schedule, and an order for child support payable by the mother. [ 11 ] He agreed to have no contact with F. and to an order for sharing of special expenses. He also agreed with an order pursuant to

section 81 of the Family Law Act and equal sharing of marital property and debt. [ 12 ] The father disagreed with the mother’s claim for spousal support and exclusive possession of the marital home on the interim and sought an order for exclusive possession of the marital home and household goods himself. [ 13 ] The mother filed a reply on August 31, 2021. [ 14 ] The Case Management Master made an interim order on August 31, 2021 granting the mother temporary exclusive possession of the marital home and household goods under the provisions of the Family Law Act , in conjunction with an order for child support.

The father was ordered to leave the home by September 3, 2021. [ 15 ] The order for exclusive possession indicated it was in force pending further determination by the Court, agreement of the parties, or review before the Case Management Master in 90 days. [ 16 ] The interim order says on a without prejudice basis, pending further hearing or review, the father has parenting time with G. every Friday after school or at 4:00 p.m. until Monday morning delivery to school.

The Case Management Master also ordered the father pay child support for G. in the amount of $986 per month based on his 2020 income of $115,088. [ 17 ] The father left the marital home as ordered. In October 2021 he moved into a cottage in Jemseg near Grand Lake, New Brunswick that he rented for $1,500 a month. He continued to have his parenting time with G. every weekend. [ 18 ] It does not appear to be disputed the father continued to pick G. up for the start of his parenting time. The father testified on cross-examination that after September 2021, the mother delivered G. to school on Mondays.

However, the mother testified the father always delivered the child to school on Mondays when he was living in Grand Lake. [ 19 ] On November 12, 2021 the father filed an amended answer. He changed his request from what was in effect a claim for primary care of G. to a request for a parenting order with a three-day-on, three-day-off parenting time schedule.

He also requested that the marital home be declared 100 percent his and not subject to division of marital property. [ 20 ] The father deposes at paragraph 67 of his affidavit filed November 12, 2021, that although he was living at the cottage in Jemseg he could not afford to keep paying for the marital home and the rental property. He further says he did not want the marital home sold as he had significant ties to the home and had invested money and time into it since before the marriage. [ 21 ] The parties were back before the Case Management Master on November 22, 2021.

The Master referred the matter of exclusive possession of the marital home to mediation, but indicated that the parties could return for a further case conference to have the matter set down on an expedited basis for an interim hearing on the exclusive possession issue, if necessary. [ 22 ] The parties attended mediation but no resolution was reached. [ 23 ] The father filed a motion on December 23, 2021 seeking a hearing before a judge on the issue of exclusive possession of the marital home. [ 24 ] He filed a further motion on January 14, 2022 seeking an order for shared parenting time for G. on a week on, week off basis.

The mother’s evidence about moving to Fredericton [ 25 ] The motions filed by the father appear to have been discussed during a telephone case conference with the Case Management Master on February 9, 2022. The order made by the Case Management Master arising from this case conference says the father’s motion filed January 14, 2022 and the issue of spousal support would be set for a one-day hearing before a Justice of the Court of King’s Bench and the application was to be set for a three-day trial. [ 26 ] The mother indicates during this case conference it was agreed the marital home would be listed for sale.

The mother’s evidence is that the father delayed signing a listing agreement and a consent order for the sale of the marital home. [ 27 ] In her affidavit sworn August 4, 2022 the mother says after the parties had their teleconference on February 9, 2022: 7. It was also discussed that following the sale of the home I would be returning to Fredericton with the children. The only reason the Respondent and I actually located in Grand Bay-Westfield was due to the Respondent’s working for [x] so that he would be closer to his work. I was a stay at home parent.

Had it not been for this work the Respondent and I would not have made our marital home in Grand Bay-Westfield. My eldest daughter and I were from Fredericton. 8. During the course of our marriage, the Respondent had major disputes with his business partner. There was litigation and a

monitor was installed. The respondent was no longer employed with [x] and this business was sold. The Respondent remained a beneficial owner until the sale. The respondent started a new corporation. His new company has its offices in Fredericton and Minto. There are no offices in Saint John or Charlotte County. This has been the case for the past several years. 9. The Respondent travelled for work and this is why the Respondent was residing at Grand Lake, New Brunswick, following separation. [ 28 ] The consent order was signed in April 2022 by both parties. It states closing would be no sooner than July 4, 2022.

It also states, “This order shall be read as an addition to all previous Interim Orders issued in this matter.” The mother testified the wording was intended to reflect that the parties would continue the interim parenting

schedule and the children would finish the school year in Grand Bay-Westfield before she moved and enrolled them in school in Fredericton. [ 29 ] The mother testified that the father was in agreement in April 2022 with the plan to move to Fredericton. [ 30 ] The mother says the listing agreement was finally signed by the father in late May 2022. [ 31 ] On May 31, 2022 the father’s counsel wrote to the mother’s counsel: Your client is expressing an intention to relocate with [G.] to Fredericton. We have received no formal notice of relocation as required by the Family Law Act.

My client objects to any removal of [G.] from the Judicial District of Saint John for the purpose of residing outside the Judicial District of Saint John. [ 32 ] With respect to this email, the mother testified that the father subsequently changed his mind, and she went ahead and started making plans to move to Fredericton with G. and F. [ 33 ] The mother filed a motion on August 4, 2022 seeking an abridgement of time for service and relief including that the Court endorse a revised, decreased price for the sale of the formal marital home.

She also requested an order granting her an immediate variation of the interim order to grant her sole decision-making responsibility with majority parenting time and primary residential care of G. [ 34 ] The mother says at paragraph 30 of her affidavit sworn August 4, 2022 in support of her motion that, given the father’s position that he is entitled to literally everything, she knew that at least in the short term she would be required to locate affordable housing.

She deposes there was literally nothing in Grand Bay-Westfield. [ 35 ] She goes on to say at paragraph 31 she was able to secure affordable housing in Fredericton, given her connections through family and friends.

She does not indicate what the cost of this affordable housing is, but says she was able to locate a three-bedroom home and that she communicated this to the father. [ 36 ] At paragraph 32 she says that she started the process of moving the children to Fredericton, and the father was aware of this since spring. [ 37 ] The mother said on cross-examination she started renting a place in Fredericton in July 2022. She testified to the address.

She said it is a heritage home and the building is owned by F.’s father. [ 38 ] At paragraph 33 the mother says after she started renting the place in Fredericton, she was then able to take steps to secure placements in school and register G. for school in Fredericton. She registered G. for school in Fredericton in the English program, whereas she had been in French immersion in Grand Bay-Westfield.

The mother’s evidence is that the father unilaterally registered G. in French immersion last year in Grand Bay-Westfield, removing her from the school she had been attending. [ 39 ] The mother testified G. did not want to be in French immersion and her teacher told the mother she should not be in it.

She does not indicate the father ever agreed to remove G. from French immersion [ 40 ] The mother’s evidence is that she invited the father for the walk-through for the school in Fredericton but he did not attend. [ 41 ] The mother enrolled F. at Fredericton High School. [ 42 ] At paragraph 37 of the affidavit the mother says that G. has allergy appointments and a dentist appointment in Fredericton lined up. She has made an inquiry and has access to the nurse practitioner clinic in Fredericton. [ 43 ] As well, the mother relocated her employment position as a health coach from Saint John to Fredericton.

Again, it is unclear from her evidence when she actually made the request of her employer to work out of Fredericton.

It appears to have been in the summer of 2022. [ 44 ] On cross-examination the mother testified she had the same position in Saint John as she now does in Fredericton, although she said that she will get an extra $5,000 a year as she now will work in the Saint John and Fredericton area. [ 45 ] At paragraph 40 of her affidavit sworn August 4, 2022 the mother says that the steps she took, including getting a place to live in Fredericton, registering G. for school in Fredericton and relocating her job from Saint John to Fredericton, were all done with full notice to the father, who was not expressing opposition to this at the time. [ 46 ] She says at paragraph 42 of her August 4, 2022 affidavit the father had now advised her his move to Grand Bay-Westfield was imminent.

She says she had no idea he was intending to rent a place in Grand Bay-Westfield because he told her he was looking at

homes in Fredericton. [ 47 ] In the prior paragraph the mother said to her knowledge the father continued to rent the property at Grand Lake and was also renting a suite in Saint John. She says he had not expressed an interest in the marital home of late, at least not since January 2022. [ 48 ] At paragraph 46 of her August 4, 2022 affidavit the mother says that since late July, 2022 the father has now voiced his objection and was denying he had agreed to the move. [ 49 ] The mother swore another affidavit on August 29, 2022.

In it she says that since the father moved (back) to Grand Bay- Westfield he harassed her and the children nearly daily by stalking the home. She alleges that on August 23, 2022 he was in the yard and would not leave, although she asked him repeatedly to leave. She says he urinated in the yard in the presence of the children and their friends. [ 50 ] The parties attended a case conference before the Case Management Master on August 30, 2022.

The Master ordered the father’s motion for an order prohibiting the mother’s relocation/change of address to Fredericton be set for a one-day hearing. [ 51 ] The mother proceeded with her move. She testified on cross-examination she was not fully moved into her home in Fredericton until Thanksgiving 2022.

She said in the summer of 2022 she would go to Fredericton on Thursdays and come back to Grand Bay-Westfield to the marital home on Sundays. [ 52 ] She said as of September 2022 she started to stay in Fredericton Sunday night until Friday, usually, and would stop in at the house on Wednesdays when she was down for work. [ 53 ] G. began school in Fredericton in September, 2022. The father’s evidence about the mother’s move [ 54 ] The father acknowledges that the parties had a telephone case conference on February 9, 2022 and they agreed to list the house for sale.

He says he signed the listing agreement and the consent order when they were presented to him by his lawyer. [ 55 ] The father disputes the mother’s evidence about there being an agreement to move to Fredericton. He deposes at paragraphs six to eight of his affidavit sworn August 8, 2022: 6. With regard to paragraph 7 of the Applicant’s affidavit, and statement that if not for my work we would have lived as a family in Fredericton: I disagree. I have worked largely from a home office for about the past twenty-years.

Moreover, I owned the home in Grand Bay-Westfield( […] Drive) long before my relationship with the Applicant began. I purchased the home in 2005 and she moved in with me in 2015. I wanted to stay at the property I had put so much work into over the years. 7. At paragraph 8 of her Affidavit the Applicant suggests I should be working in Fredericton. I am not a production manager, I do not oversee matters on the production floor at either the Fredericton or Minto locations.

My role in the company is as a product developer, and as such the work requires that I travel to and from various offices; it is not a role that requires me to be present on a day- to-day basis. It provides flexibility (including in my ability to be present for [G].) and enables me to work from home. 8. As to paragraph 9 of the Applicant’s affidavit, I had to find an affordable place to live. I was ordered to leave the home within three (3) days. I stayed at a friend’s cottage located in Jemseg, N.B., which had room for [G.] and our pet.

These are the reasons I chose to reside at Jemseg – it was not because it allowed me to travel to work. [ 56 ] On cross-examination the father said his business, RAP, has a manufacturing plant in Minto and one in Montréal. When asked if he has an office in Saint John he said he works in his home.

He agreed he can work from wherever he is. [ 57 ] When asked if his company has an office in Fredericton he testified that was a mistake and said the company eventually plans to close the office in Fredericton and move everything to Minto. [ 58 ] The father was asked whether he was saying he can do no work from the office in Fredericton.

He responded that the fire marshal has said that the stairway is not safe. [ 59 ] The father confirmed it is his position he is entitled to a 100 percent interest in the marital home as well as 100 percent of the household property, RRSPs and savings at separation. [ 60 ] On cross-examination the father was asked why he did not reside in Grand Bay- Westfield after he left the marital home.

He said with COVID it was hard to get a place to rent, and the cottage he obtained was furnished and it was on the beach so he and G. could do activities outside. [ 61 ] It is unclear when exactly the father obtained a suite in Saint John. He obtained an apartment in Grand Bay-Westfield, it would appear, in July 2022.

In his affidavit in support of the motion sworn on August 23, 2022, the father deposes he chose his residence in Grand Bay-Westfield to be near the elementary school. [ 62 ] The father also deposes in his affidavit sworn August 8, 2022 that the mother had been aware for some time he did not agree with the move to Fredericton and she was aware he secured accommodations in Grand Bay-Westfield and was certainly aware of that when she swore her affidavit on August 4, 2022. [ 63 ] The father attached the May 31, 2022 correspondence from his lawyer to the mother’s lawyer, referred to above, to his affidavit.

He also refers to having provided a written confirmation of his position on June 7, 2022, however, that is not attached to his affidavit.

Events since the end of August 2022 [ 64 ] The mother says in her November 16, 2022 affidavit that after the last court appearance (August 30, 2022), she received a call from one of the neighbours that the father appeared to have returned to the former marital home for an extended period of time. She says that at this point in time the listing agreement had to be renewed, but the father refused to sign it. [ 65 ] The mother said she found out that her closet had been ransacked and she was too afraid to remain in the home.

She said she told her lawyer she would let the father stay in the home, but either the house needed to be relisted for sale or he could buy her out. [ 66 ] She says on October 6, 2022 the father took the real estate sign off the front lawn and changed the locks to the martial home. She says she was told the father does not intend to buy her out or list the home for sale. [ 67 ] The father testified on cross-examination that he is currently living in the marital home.

He said he moved in because it was abandoned by the mother and was “dilapidated.” He said he still has the apartment across the street. [ 68 ] When asked whether he refused to sign a new listing agreement, the father said if he is ordered to, he will sign one. He then said if the mother wants to list the home, he will talk to his lawyer. [ 69 ] The mother filed a further affidavit November 16, 2022.

In it she alleges the father “made a scene” at a school in Grand Bay- Westfield that G. was not registered to attend. [ 70 ] On cross-examination the father acknowledged he purposefully took G. to the school in Grand Bay-Westfield one day when the mother did not come to pick her up. He said the principal accepted her. [ 71 ] The mother says during the week of October 24, 2022 the father did not take G. to school and asserted that they were too sick. The mother agreed on cross-examination that G. looked sick when she saw her on FaceTime. She testified that she asked the father to get G.

COVID tested and said it was best for them to stay together, versus her getting sick. [ 72 ] The mother also says that on Halloween, October 31, 2022, the father either delivered G. to her late or took her to school midday. On cross-examination the father testified the mother picked G. up that day. [ 73 ] The mother says on November 5, 2022 the father refused to take G. to school and said he was intending to withhold her. This led the mother to call the RCMP. The mother says the RCMP officer “negotiated the release” of G. to her care.

She says the father only agreed to release G. to her when she agreed that he could have her for an additional night, which was the Thursday before Remembrance Day weekend. [ 74 ] The mother said on Monday, November 14, 2022 the father refused to take G. to school again. She said she went early in the morning to get G. so that she would not miss school. [ 75 ] On cross-examination the father was asked if it was true he withheld G. from school several times. He said, “No”, but then he said it was with “informed consent”.

He said he schedules doctor and dentist appointments for G. on the Monday after she is with him because she is calm. [ 76 ] The mother also says in her affidavit sworn November 16, 2022 that the father called G. nearly nonstop the week of November 5, 2022. She says that G. has told her she does not want to speak to her father, and he keeps her on FaceTime for extended periods of time, which places her in a constant state of anxiety. [ 77 ] On cross-examination the father was asked how many times a week he calls G. He said he tries to communicate with her daily as it is important.

When asked how he makes those calls he said he is on the fourth iPad for G. in the past 15 months. He said it is difficult to communicate with her because the mother shuts them down. [ 78 ] When asked how long his FaceTime sessions with G. are, the father said sometimes they are two minutes and sometimes they are five minutes.

He said that initially the mother and G. would fight because G. wanted to talk with him longer, but G. eventually gave up fighting about it with her mother. [ 79 ] When asked on cross-examination how his parenting time with G. has changed since September 2022, the father responded that she does not have the safety of him anymore. He said he is not physically available to her. ISSUE [ 80 ] Should the Court order that G. be returned to reside principally and attend school in the Grand Bay-Westfield area pending the hearing of the application?

LAW AND ANALYSIS [ 81 ] The provisions of the Family Law Act relevant to change of place of residence or a relocation are as follows: 59(1) A person who has parenting time or decision-making responsibility in respect of a child and who intends to change their place of residence or that of the child shall notify any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child. 59(2) A notice under subsection (1) shall be given in writing and shall set out (

a) the expected date of the change in the place of residence, and

(

b) the address of the new place of residence and contact information of the person or child, as the case may be. … 59(4) Despite subsections (1) and (2), the Court may, on application, provide that the requirements in those subsections do not apply or may modify them, including when there is a risk of family violence. 59(5) An application referred to in subsection (4) may be made without notice to any other party. 60(1) A person who has parenting time or decision-making responsibility in respect of a child and who intends to undertake a relocation shall notify any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child. 60(2) A notice under subsection (1) shall be given in writing and shall set out (

a) the expected date of the relocation, (

b) the address of the new place of residence and contact information of the person or child, as the case may be, (

c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised, and (

d) any other information prescribed by regulation. 60(3) A notice under subsection (1) shall be delivered with as much notice as possible in advance of the date of the planned relocation. 60(4) If a person intending to undertake a relocation is unable to provide notice under subsection (1) at least 60 days in advance of the date of the relocation, that person shall provide reasons in the notice. 60(5) Subsections (1) to (4) do not apply if an agreement filed under this Act or a court order provides a different notice requirement for a planned relocation. 60(6) Despite the requirements of this

section or in the regulations made for the purposes of this section, the Court may, on application, provide that those requirements do not apply or may modify them, including when there is a risk of family violence. 60(7) An application referred to in subsection (6) may be made without notice to any other party. 61 A person who has given notice under subsection 60(1) and who intends to undertake the relocation of a child may do so as of the date referred to in the notice if (

a) the relocation is authorized by the Court, or (

b) the following conditions are satisfied: (

i) a person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 60(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in an application made under subsection 52(2) or (6), and (ii) there is no order prohibiting the relocation. [ 82 ] Subsection 62(1) indicates that in deciding whether to authorize a relocation of a child, in order to determine what is in the best interests of the child the Court is to take into consideration the factors in section 50(3) of the Act . These include: (

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 other person 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 issuesaffecting 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. [83] Subsection 50(3) provides that when considering the above-noted factors, the Court shall give primary consideration to thechild’s physical, emotional and psychological safety, security and well-being. [84] In addition to the factors referred to in

section 50, the Court is also required to take into consideration: (

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 thelevel of involvement in the child’s life of each of those persons, (

d) whether the person who intends to undertake the relocation of the child complied with any applicable notice requirement undersection 60 or under an agreement or order referred to in subsection 60(5), (

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

f) the reasonableness of the proposal of the person who intends to undertake the relocation of the child to vary the exercise of parentingtime, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residenceand the travel expenses, and (

g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order hascomplied with their obligations under this Act or an order or agreement, and the likelihood of future compliance. [85]

Section 65 of the Family Law Act provides that if the Court authorizes the relocation of a child, it may provide for theapportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the personwho is relocating the child. [86]

Section 49 of the Family Law Act defines “relocation” to mean: A change in the place of residence of a child or a person who has parenting time or decision-making responsibility in respect of a child,or who has a pending application for a parenting order, that is likely to have a significant impact on the child’s relationship with (

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

b) a person who has contact with the child under a contact order. [87] The mother cites the B.C. case Hanson v. Dinney 2021 BCSC 1983, where the Court determined that a move from Comox toHornby Island, B.C. was not a relocation. [88] In that case the child had a number of healthcare providers as he had special needs. The distance between the parties’residences would go from an approximately 20-minute drive to approximately 50 to 60 minutes, with two ferry rides.

The child wouldnot change school districts or health districts. [89] In determining the move was not a relocation the Court stated: [43] I accept this change of residence will have some impact on the respondent's relationship with his son. I find this is a change ofresidence, and not a relocation, as these communities are within commuting distance of each other. Parents regularly travel between thesecommunities for work and activities.

More importantly, children who live on Hornby Island remain part of the School District No. 71and must commute to the Comox Valley for their grade 8 to 12 education. [44] In any event, I find that the proposed move to Hornby Island will not significantly impact the respondent's parenting time andrelationship with Gavin to the extent necessary to find this move is a relocation.

I do expect that the court can take the respondent at herword that she will facilitate all of the parenting time agreed upon by the parties and will pay and commit to all the pick-ups and drop-offsof Gavin to the respondent at his home. [90] The Court is unaware of case law in this province interpreting the question of relocation versus a change in residence.However, I note the Saskatchewan Court of Appeal in D.T.D. v T.A.J., 2022 SKCA 34 , stated the following: [46] … [T]he relocation analysis examines whether the effect of the move will have a significant impact on the child’s relationship withthe other parent: “The use of the qualification ‘significant’, acknowledges that there will be some impact from a move but limits thecourts involvement to those moves which will have a significant impact on relationships.

The focus is on the best interests of thechildren” (at para 32). [47] What this means is that, in assessing the root question of whether the proposed move will have a significant impact on the child’srelationship with the non-moving parent, a court must take into account more than just the commuting distance between residences. Acontextual analysis is called for that would include considerations such as the following: (

a) whether and how the move would change the amount and frequency of parenting time for the non-moving parent;

(

b) whether and how the move would affect the degree of involvement of the non-moving parent in the child’s activities, schooling andso forth; (

c) whether the moving parent is willing to bear the burden of any increase in the commuting time; (

d) how the distance or commuting time between the two residences would affect the quality of the child’s relationship with the non-moving parent; and (

e) whether the non-moving parent has the ability – financial or otherwise – to commute to and from the child’s proposed new placeof residence or an intermediate location. [48] Of course, the above is not an exhaustive list, and the factors are not prioritized in any way. The facts of each case will vary.

Muchwill depend on the parenting order in place, the age of the children, the scope of parental involvement (e.g., shared parenting), etc. [91] While the mother argues that her move is change of residence and not a relocation because there is no impact on the father’sparenting time, she submits that, whether the move is considered a relocation or a change in residence, the proper analysis in this case isthe relocation analysis in the Family Law Act. [92] As well, there is case law that indicates a move of a child should only be authorized on an interim basis if there arecompelling circumstances.

See for example D.A. v. J.R., 2012 NBCA 38 at paragraph 14. [93] I find it is appropriate to consider this matter by applying the best interests of the child/relocation analysis in the Family LawAct and through the lens of whether compelling circumstances warranted an immediate move by the mother. Burden of proof [94] The father argues that the mother bears the burden of proof to demonstrate that the move is in G.’s best interests. The burdenof proof provisions are set out in sections 63 and 64 of the Family Law Act.

In my view, at this interim stage, where there is conflicting evidence and the Court is not in a position to make final determinations ofcredibility, it is appropriate to apply

section 64, which provides that the Court may decide not to apply subsections 63(1) and (2). Best interests analysis [95] Considering the best interest factors at

section 50 of the Family Law Act I make the following findings: (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; [96] G. is now eight years old. She does not appear to have any significant medical or developmental issues. She requires stabilityand a secure environment, as any young child would require. (

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; [97] Both parents indicate they have strong relationships and bonds with G. It is apparent to the Court both parents love G. [98] The mother suggests G. is either afraid of the father or exhausted by his continual requests to speak with her. The fatherdescribes a loving and positive relationship with G.

At this stage, I accept that G. has a bond with both her parents. [99] I accept that G. has a close relationship with her older sister F., with whom she has always lived. [100] I also accept that G. has extended family in Fredericton, including her maternal grandparents. According to the father, thematernal grandparents live with the mother’s great-grandparents. [101] The father has sisters who live in the Saint John area. He testified G. visited his sister D. a couple of months ago and they had agreat time. (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse [102] It is apparent that the mother feels the father was attempting to undermine her parenting time by showing up at the marital homewhen he moved back to Grand Bay-Westfield, and by not dropping G. off to school (and back to her weekly care) on several Mondays. [103] The father did not contradict the mother’s evidence that he has not returned G. to school on several Mondays.

Even if it is thecase that he booked medical appointments for G. on these Mondays, I question his motivation in doing so. It does appear he was notprepared to return G. to the mother’s care on November 5, 2022 until she agreed to give him more parenting time. [104] The mother has maintained the parenting time arrangement that was put into place in August 2021.

However, she followedthrough on moving to Fredericton and starting G. at school there, knowing the father did not consent to the move, (having filed a motionAugust 24, 2022 to ask the Court to prohibit it), and without having provided the required notice of same. (

d) the history of care of the child [105] The parties’ evidence as to who was primary caregiver for G. conflicts. The mother’s evidence is that she was a stay-at-homeparent and was primarily responsible for all childcare for both G. and F., as well as all household tasks.

[ 106 ] On the other hand, the father claims he was the primary caregiver for G. [ 107 ] However, the mother was not working outside the home full-time until just before separation, which she says was in May 2021. The father acknowledges his work had him travelling three days a week, although he says he would leave work early to be home in time to care for G. [ 108 ] The father says he was the decision-maker for G. He deposes that G. used to go to a school in Saint John for kindergarten and grade one.

However, he says the location and timing of his employment, and the mother’s impacted ability to get G. to and from school, meant that he arranged to transfer her to a school in Grand Bay-Westfield for grade two in September 2021. [ 109 ] He says he prepared her for her admission test for French immersion by hiring a tutor to work with her for three days a week.

The father also says he arranged for G.’s dental care and that he plans and purchases her school supplies and clothing. [ 110 ] On cross-examination the mother said the father switched G. to school in Grand Bay-Westfield and chose childcare and tutoring without consulting her. [ 111 ] She deposes in the 2020-2021 school year she transported G. to school, except for Tuesdays, which was the day the father was available to do it.

She deposes she is very involved with education, medical treatment, and day-to-day needs of the children and that she made appointments, including dental appointments, and took the children to them.

She says it has only been recently (i.e. since approximately May 2021) that the father has made dental appointments for G. [ 112 ] As noted, at separation the parents both remained in the marital home until the mother obtained the order for exclusive possession of the home in late August 2021. [ 113 ] Since that time, while no interim order for primary parenting or decision-making was made, G. has spent the weeks with her mother and every weekend from Friday until Monday with her father. (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained. [ 114 ] G. is now eight years old. She will be nine years old by the time of trial in October 2023. Both parents indicate that G. has told them she wishes to reside in Fredericton. However, the father deposes in his affidavit evidence that it appeared to him she had been coached into saying this. [ 115 ] The father asked for a Voice of the Child Assessment to be ordered for G. It is unclear if this is opposed.

However, no hearing date appears to have been set to address the request. [ 116 ] In any event, at the age of eight G. is young, which would impact the weight the Court could put on her views and preferences. (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage [ 117 ] This does not appear to be a factor in this matter. (

g) any plans for the child’s care [ 118 ] The mother’s request in her application is for an order for sole decision-making authority and primary parenting/residence for G. [ 119 ] The mother’s initial plan to live in the marital home in Grand Bay-Westfield and have G. continue to go to school there changed when the parties agreed to list the house for sale. Her plan is now to reside with G. and F. in Fredericton. On the interim, she will continue to follow the

schedule of parenting time for G. that is in place. [ 120 ] With respect to transportation for parenting time, the mother does not believe there should be a change from the father picking up G. on Fridays and dropping her off to school on Mondays because this is what the order for parenting time provided and because the father continued to do the transportation when he lived in the cottage near Grand Lake. [ 121 ] The father’s plan as set out in his answer was to have primary care and sole decision-making for G. and also to reside at the marital home in Grand Bay-Westfield. [ 122 ] After the mother was granted exclusive possession of the marital home, he resided outside of Grand Bay-Westfield from October 2021 until July or August 2022. [ 123 ] However, it appears he now intends to reside in Grand Bay-Westfield and his plan would see G. living with each parent on a week on/week off basis, which of course would require the parents to live in the same community or at least the same school district. (

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 [ 124 ] The mother alleges that the father has mental health issues that impact his parenting and put G. and her sister F. at risk. She asked in her application for an order for supervised parenting time on the part of the father with G., and she also requested an order for a psychological assessment be carried out on the father. [ 125 ] The father denies any current mental health issues and denies family violence perpetrated by him.

He objected to the mother’s requests for an order for supervised parenting time. Supervised parenting time was not ordered. [ 126 ] He also objected to the request for a psychological assessment. I note that in the order made August 31, 2021 the Case Management Master ordered the issue of a psychological or risk assessment, if not addressed by the Department of Social Development,

be set for a one-day hearing before a judge, along with the issue of a further interim parenting plan, child and spousal support and the parties’ “competing claims” for restraining orders. [ 127 ] On cross-examination the mother agreed she had made several calls to Child Protection Services and asked for an investigation into the father’s mental health. When she was asked if she was aware that the Department of Social Development found no reason the father could not care for G., the mother responded that she was not aware.

She said that the Department told her they sent someone to speak to G. [ 128 ] The mother has not provided any evidence the Department of Social Development has substantiated the mother’s claim the father is a risk to the children. [ 129 ] The father has had parenting time with G. every weekend for over one year now. He has taken her on some vacations.

He testified he is not on antipsychotic medication and said he takes his medication for anxiety and depression as prescribed. [ 130 ] I do not conclude G. is at risk of harm in her father’s care because of mental health issues on his part, however, I find that the father has engaged in questionable behaviours, including going on the property when the mother was granted exclusive possession of the marital home, and not returning G. to the mother’s care or to school consistently. These behaviours cause some concern for the Court. (

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; [ 131 ] The parties have great difficulty communicating and cooperating on matters affecting G. The conflict between them has impacted their ability to consult on important issues for G. and on matters affecting her. (

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 [ 132 ] The mother alleges the father has been emotionally and physically abusive towards her and has harassed her and the children. [ 133 ] The father denies this.

He suggests that the mother was the one to use vulgar language, and that on an occasion in August 2021 when the mother says he pinned her to the ground, she in fact was physically attacking him. T he Court cannot determine at this point whether the allegations of physical violence are true. [ 134 ] As noted, the father has engaged in some disturbing, and what can be characterized as harassing, behaviours. He went to the marital home more than once after the mother was granted exclusive possession of it, and the mother says he would not leave when she asked him to.

He urinated in the yard in the presence of the children and their friends. Prior to this, he put a bag of dog feces on F.’s bedroom floor apparently as a disciplinary measure. [ 135 ] I note that both parties seek orders under

section 81 of the Family Law Act against the other. At the hearing of the motion, both parties’ counsel indicated their clients would agree to a mutual

section 81 order. (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. [ 136 ] The police have been called by both parents on more than one occasion. However, there are no civil or criminal proceedings, orders, conditions or other measures relevant to the safety security and wellbeing of G. that the Court is aware of. Consideration of additional relocation factors under the Family Law Act :

a) the mother’s reasons for the relocation [ 137 ] While the mother was granted exclusive possession of the marital home in Grand Bay-Westfield, I accept she had to contemplate a change in residence as the marital home was ordered listed for sale on consent in April 2022. It is apparent the mother wanted to move to Fredericton because of family support. The mother says she had to move when she did because she did not want to have to change G. (and F.’

s) school partway through the school year. [ 138 ] She said the fact the father is claiming a 100 percent interest in the marital home and other property meant she had to find affordable accommodations.

She says she was able to find suitable and affordable accommodations in Fredericton. [ 139 ] On redirect the mother testified that her experience looking for housing in Grand Bay-Westfield was that there was nothing she could get that was affordable and that would be proper for the children. [ 140 ] The father’s evidence gives some credence to the mother’s claim there is an issue finding affordable accommodations in Grand Bay-Westfield. He says he had to find accommodations that were affordable and that is part of the reason he ended up residing in the cottage in Jemseg.

He may have found an apartment that will accommodate himself and G. for $1,200 a month in Grand Bay-Westfield. However, the mother also needs accommodations for F.

[141] The father was not living in Grand Bay-Westfield when his counsel sent the written objection to the move to the mother’scounsel at the end of May 2022, and had not been doing so since October 2021. It does not appear he told the mother he had acquired anapartment in Grand Bay-Westfield until July or early August 2022. [142] In these circumstances I find it was reasonable for the mother to question whether the father actually intended to move back toGrand Bay-Westfield. [143] Overall, I do not conclude the mother’s reasons for moving to Fredericton are based on improper motives, such as to frustratethe father’s parenting time. (

b) the impact of the relocation on the child [144] G.’s parenting time with her father is not currently impacted by the mother’s move. [145] The mother submits G. would have had to start school at a new school in any event because she had aged out from her formerschool in Grand Bay-Westfield. [146] The father testified that his issue is that G. should not be removed from her community and her friends. When asked whatfriends she has, he said H. and C. live down the road. When asked when G. last spent time with them, the father said the weekend beforelast.

He said there is also A. who G. spent time with this past weekend. [147] It was put to the father on cross-examination that G. being in school in Fredericton does not impact those friendships. The fathersaid she should be in school with these people. [148] The mother was asked on cross-examination if G. would have built up friends from her first year at the school in Grand Bay-Westfield. She said she may have had some friends, but the friends the father talked about do not go to the school G. would go to if shewere in Grand Bay-Westfield.

She said she has friends in Fredericton too. [149] I have no doubt there is some impact on G. no longer going to school in the community she has lived in all of her life. However,on the interim she will still be able to see her friends every weekend. [150] The father submits in his brief that, because of the mother’s move, G. now has a one-hour commute to school on Mondays anda one-hour commute to her father’s on Fridays. [151] However, because of the father’s move to Jemseg in October 2021, G. had a one-hour-and-20-minute commute to school onMondays and a one-hour-and-20-minute commute after school on Fridays. (

c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting orderand the level of involvement in the child’s life of each of those persons [152] Under the current parenting arrangement the mother has weekdays with G. and the father has every weekend.

The mother saysshe is now able to attend horseback riding lessons with G. in Fredericton, as school does not sit Wednesday afternoons. [153] While the mother disputes that the father was as involved in parenting G. when she was younger as he says he was, I accept thathe has been an active parent to G. in term of her education, and it appears he has been taking her to some appointments. He is engaged inactivities with her on his weekends. (

d) whether the person who intends to undertake the relocation of the child complied with any applicable notice requirementunder

section 60 or under an agreement or order referred to in subsection 60(5) [154] The mother concedes she did not give notice as required in the Family Services Act, either for a relocation or a change inresidence. [155] The Court in Malanowich v Toth, 2021 SKQB 249 stated at paragraph 78: …Notice allows for discussion leading up to the potential move date and provides a much more conducive environment to the possibleresolution of the matter. Much consternation and waste of resources has resulted from the failure to provide timely notice.

Enabling theissues associated with a move to be discussed and, if no agreement results, litigated in an orderly manner is important as that type ofpossible change is often quite emotionally charged. Lack of notice, however, cannot trump the best interests of a child which remain thecentral focus of such applications. However, in a matter such as this, specifically an interim mobility application, it carries some weightand is of significance. (underlining added) [156] Whether the father objected and changed his mind or not, the mother knew he opposed her move by August 2022.

She shouldhave provided formal notice, which may have allowed for this motion to have been dealt with in a timely manner. However, she did notmove surreptitiously. I accept she made the father aware of her intention. In any event, the best interests of G. are still the overridingconcern for the Court. (

e) the existence of an agreement or order that specifies the geographic area in which the child is to reside

[ 157 ] There is no agreement or order that specifies the geographic area in which G. is to reside. (

f) the reasonableness of the proposal of the person who intends to undertake the relocation of 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 [ 158 ] The mother does not ask at this point to vary the parenting time for G. However, she takes the position that the father should be required to continue to do all the transportation. (

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 this Act or an order or agreement, and the likelihood of future compliance. [ 159 ] As noted, the mother did not comply with her obligation to provide written notice of the move. [ 160 ] The parenting time arrangement in the interim order has not been varied. However, the father has not consistently followed the parenting

schedule ordered in August 2021 since the mother’s move. CONCLUSION [ 161 ] The mother’s move does not change the father’s parenting time in any way on the interim. He continues to have every weekend with G. [ 162 ] While I acknowledge G. continued to live in Grand Bay-Westfield for almost a year after the interim order was made in August 2021, the father was not exercising his parenting time with her in Grand Bay-Westfield. He was residing in Jemseg.

They were spending weekends at the cottage. [ 163 ] The mother’s move with G. means that, pending the hearing of the application, she is attending school in a different school district, and she will have new service providers. However, I do not find it prevents the father from participating in G.’s school activities or appointments. The distance and commuting time is approximately an hour between Grand Bay-Westfield and Fredericton, compared to the one-hour-and-20-minute drive between Jemseg and Grand Bay-Westfield. [ 164 ] The father is self-employed and says he can work from anywhere.

His company has a plant in Fredericton. I believe he travels to Fredericton regularly. The move does not impact his ability to be in Fredericton for any school or health-related appointments for G. [ 165 ] In terms of whether there are compelling circumstances that would justify an immediate move, pending the full hearing of the application, there was an agreement embodied in a consent order to list the marital home for sale. That order has not been varied. The house therefore needs to be listed for sale unless the parties come to an agreement otherwise. The mother needed to find alternate accommodations.

She says she was unable to find suitable and affordable accommodations for herself, G. and F. in the Grand Bay- Westfield area. I accept her evidence on this. [ 166 ] It is impractical for the mother to move back into the marital home with G. and F. temporarily, as the father suggests she could do. Even if she did, it is likely she would then have to find a different place to live in Grand Bay-Westfield with G. and F.

A further change in residence would cause further disruption to G. [ 167 ] If G. remains with the mother and F. in Fredericton pending trial, she will continue to spend every weekend with the father in Grand Bay-Westfield.

She will have the opportunity to see her friends in the community, as well as see the father’s sisters who reside in Saint John. [ 168 ] I therefore find it is in G.’s best interests to dismiss the father’s request that there be an order that G. return on the interim to reside primarily and attend school in Grand Bay-Westfield. [ 169 ] In this situation, however, I recognize that the interim parenting arrangement ordered by the Case Management Master in August 2021 which provided that the father would pick up and drop off G. for his parenting time did not contemplate the mother changing her residence to Fredericton.

It appears both parents travel between the Saint John area and Fredericton. Therefore, the interim arrangement shall be varied to provide that the father shall pick G. up from school or at 4:00 p.m. on Fridays, and the mother shall pick up G. from the father Monday mornings and deliver her to school, if there is school. [ 170 ] By agreement, a mutual order under

section 81 of the Family Services Act shall be included in the Court’s order. COSTS [ 171 ] I do not find this is an appropriate case to order costs. The parties shall bear their own costs of the motion. DATED at the City of Saint John, New Brunswick this _____ day of December 2022. ___________________​​​​​​​​​_________​​​​ Justice M. Deborah Hackett Court of King’s Bench of New Brunswick Family Division