E.D.W. Applicant v. D.L.(B.) W., 2023 NBKB 18

2023 NBKB 018 COURT FILE: FDN-144-2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF MIRAMICHI BETWEEN: E.D.W. Applicant and D.L.(B.) W. Respondent Before: The Honourable Mister Justice Danys R.X. Delaquis Date of hearing: January 17-18, 2023 Date of Decision: February 13, 2023 Appearances: Jennifer L. Donovan - for the Applicant Emma Ogilvie - for the Respondent

Summary: Relocation, decision-making responsibility and parenting time DECISION

DELAQUIS, J.: OVERVIEW [ 1 ] The parties eloped and were married on April 12, 2017, in San Francisco, U.S.A. They are the biological parents of R.B.W. [D.O.B… 2018] (hereinafter “the child”), who was born in the U.S.A. but retains dual citizenship. The child has special needs. [ 2 ] The Respondent is an American citizen. She grew up on the West Coast of the U.S.A. where her family still resides. The Applicant is a Canadian citizen and has lived in Miramichi for most of his life. [ 3 ] The relationship between the parties was perhaps aptly described by the Respondent as like “oil and vinegar”.

Incidents of family violence permeated the relationship from the outset when they lived on the West Coast of the U.S.A., and continued after they moved to Miramichi, New Brunswick. in June-August 2018 with the child. [ 4 ] A culminating incident of family violence on October 14, 2022, led to the Respondent’s decision to separate and relocate with the child to the West Coast of the U.S.A. on November 1, 2022, without notice to the Applicant. [ 5 ] As a result, the Applicant filed an Application on November 23, 2022, and sought emergency Interim Relief as well.

The parties signed an Interim Consent Order which was filed on December 20, 2022 [the “ICO”]. The ICO provided that the Respondent would return to New Brunswick with the child until the disposition of the Application, along with other parenting arrangements. [ 6 ] This matter raises several difficult issues including credibility, as well as decision-making responsibility and parenting time in the context of a without notice relocation based on allegations of family violence.

The parties have agreed that issues of child support and spousal support will be addressed at a further hearing depending on my findings in this decision. FACTS Parenting [ 7 ] The child was born at 7:17 p.m. on February 17, 2018, at a hospital in Washington State, U.S.A. [ 8 ] The Applicant testified that he did everything he could to help the Respondent after the birth of the child including pumping milk and changing diapers. The essence of the Applicant’s evidence in terms of his involvement in the child’s care pre- separation is described in paragraphs 23-29 of his Affidavit: 23.

At the time of [the child]'s birth, I was employed fulltime as an Electrical Foreman with Integral Energy Services in Fort McMurray, Alberta. I took 6 months of paternity leave, from December 2017 to May 2018. During that time, I was fully involved in caring for [the child] in all ways. The Respondent would go take a nap, run errands or spend time with friends or family and I would care for [the child] alone.

As we fed both formula and breast, I fed [the child] regularly, bathed him, played with him, and put him to bed. 24. 1 have always been primarily or solely responsible for the majority of the household chores including, but not limited to, dishes, laundry, outdoor maintenance (lawn care and snow removal) and household tidying. While on maternity leave, the Respondent did assume some light cleaning duties. We have always shared cooking duties. 25. The Respondent and I shared the responsibility of waking up in the night to feed, change and dress [the child]. We created his routine and schedule.

We shared in consoling, playing with and taking him on playdates and caring for [the child] when he was sick. I did everything a father should do to care for a newborn baby, and assisted the Respondent's needs as well.

26. The Respondent and I discussed all childcare, medical, health and all decisions relating to [the child]. We worked together to arrange school enrollment, daycare and afterschool care. 27. I booked and attended most of [the child]'s appointments, medical and otherwise. My mother, namely: [S.W.] (my "Mother"), and my sister, namely: [M.W.] ("[M.]"), both helped with transporting [the child] to and from daycare when needed. 28. 1 would spend my time playing with [the child] and helping him reach his milestones. I would sing, read to, and snuggle [the child].

I monitored his naps and practiced "tummy time" with him, helped him learn to crawl and walk. When we were potty training [the child], we both rose to the challenge. Reading to him, drawing, and creating with him, enjoying the first Christmas that meant something to him are all very vivid memories for me. 29. 1 have always been a hands-on father. I attended [the child]'s swimming lessons, and do pick up and drop offs at Stacey's Play and Learn classes twice per week. [ 9 ] The Respondent testified that the Applicant helped during the daytime with childcare, but struggled with night time care.

He fed the child bottles and made meals. According to the Respondent, they divided tasks well. She testified that he was not always up right away, but he was “hands on” with the child by cooking meals and playing outside with him. [ 10 ] The child often had play dates at Fletcher’s Farm, Ritchie’s Wharf and at friend’s houses. The Respondent says that she took the child to extracurricular activities as well as medical appointments. She helped with assigned reading and homework. The child is very “crafty” and enjoys play dough, dancing and singing with the Respondent.

According to the Respondent, the child is “obsessed” with Disney cars. [ 11 ] The Respondent admitted that the Applicant did a lot for the family during the day, including groceries, changing diapers, and preparing and cleaning milk bottles. He also helped with the bath routine. They went for lots of walks and watched a lot of movies. [ 12 ] Finally, the Respondent said that she was not downplaying his role as a parent, but that he “was not a great partner”.

He was not sensitive to her needs, but she agreed that he met the child’s needs, including securing a day care for him. [ 13 ] When the Applicant was out of province for work, a typical day consisted of the child waking at approximately 6:30-7:00 a.m., getting dressed, having a glass of apple juice and breakfast. At that time, the Respondent was working at 8:30 a.m. and found it difficult to get everything going in the morning on her own. [ 14 ] The Respondent made allegations in her Affidavit about the Applicant’s work

schedule to the effect that he was working two weeks away and off two weeks for most of their relationship. The purpose of this evidence was to attempt to convince the Court that the Applicant was not the primary caregiver because he was away for work approximately 50 percent of the time. [ 15 ] This evidence was disputed by the Applicant. He says he was the primary caregiver. In fact, from November 2016 until Christmas 2017, he was working 14 days on, 7 days off, but that was before the child was born. He added that he resigned from his employment two months before the child was born.

He says they were running out of money and that they could survive on his income alone, but not hers. As a result, the Applicant went for a job interview in March 2018 in Miramichi, secured employment and they all returned to New Brunswick shortly thereafter. According to the Applicant, they had been discussing moving to Canada in any event. [ 16 ] Shortly thereafter, on May 7, 2018, the Applicant secured employment working four 10-hour shifts per week. [see Exhibit 1, Tab 6].

The Respondent moved to Miramichi on or about August 1, 2018. [ 17 ] The parties lived with the Applicant’s parents upon their return to New Brunswick until April 2019. On August 28, 2019, he found other employment in Miramichi as an electrician for six months until December 19, 2019. [Exhibit 1, Tab 4].

[ 18 ] As of March 7, 2020, the Applicant was home for 11 months due to the COVID-19 pandemic. He was essentially unemployed from March 7, 2020, to February 2021 and stayed in Miramichi while receiving Employment Insurance Benefits. During this period, they had “no money, but lots of time”. They were nonetheless able to keep the lights on and food in the fridge. As a result, the Applicant says he and the child spent a lot of time together and became close. [ 19 ] The Applicant’s 2020 T4E Statement of Employment Insurance Benefits confirms that he received $23,042 in benefits during that year.

These EI benefits carried over into 2021, as his T4E for 2021 confirms receipt of $1,752 in benefits. [ 20 ] A letter from the Applicant’s current employer confirms that he started as a full-time permanent employee on March 29, 2021. [Exhibit 1, Tab 12]. He testified that he has worked for the same company in Miramichi since then as a technician/mechanic apprentice working 40 hours per week from 8:00 a.m. to 4:30 p.m. He says that he has been away for work no more than 10 weeks in the last two years.

The latest he arrives home is 5:30 p.m. on weekdays, and he does not work weekends. [ 21 ] The Applicant testified that the marital home required important renovation work, so he decided to work in British Columbia on a set

schedule for this same employer to earn extra income. This explains why he was in British Columbia when he discovered that the Respondent decided to leave with the child without notice. He still works for that same employer, although he testified to being on paid leave now. No firm return to work date has been set. [ 22 ] The Applicant also relies upon documentation to dispute the Respondent’s assertions regarding his pre-separation work

schedule in the form of various Records of Employment situated in Exhibit 1, Tabs 1 to 8. [ 23 ] In cross-examination, the Applicant confirmed that he only worked two weeks on, two weeks off from June to November 2022. He of course conceded that while he was gone during this time that the Respondent did the housekeeping tasks.

He also stated that he took four weeks’ vacation during this period of time as well which he spent at home. [ 24 ] The Applicant summarized his work history in cross examination as follows: May 2018 returned to Miramichi August – December 2019 new employment, 3 weeks on, 3 weeks off for 3 months March 2020 - February 2021 COVID related unemployment, at home, but did some “cash jobs” for 14 days during this period to earn extra money February 2021 – April 2022 Away off and on April 2022 – June 2022 home, off work June 2022 – November 2022 2 weeks away, 2 weeks home Since November 2022 Working for same employer but only in Miramichi [ 25 ] The Applicant testified that he has calculated the actual weeks he has been away since the child was born.

He says he was away working 35 out of 211 weeks, or 15 percent of the time. In any event, he says that he is now done working out West. [ 26 ] The Respondent agreed that the Applicant’s two weeks home, two weeks away work

schedule was supposed to end in December 2022. She disputed certain aspects of the Applicant’s work history and highlighted for example that he travelled to Nunavut and spent three to four weeks at a time there and, worked in the northern part of the province and stayed in hotels Monday to Friday for certain periods of time. She says that they talked about him continuing to travel for work after because he was trying to get enough work experience to obtain a promotion. She added that they spoke about moving and had “dreams” of starting over somewhere, like in Florida.

They did not talk about moving back to Washington State in the U.S.A. [ 27 ] The Respondent secured employment with CannabisNB in August 2020, working 15 hours per week, until April 2021. She then worked at a naturopathic clinic until she started school in September 2022. The Applicant pointed out that the Respondent wanted to go to school and that he agreed to pay for it.

[ 28 ] In any event, the child started attending day care in September/October 2021. After the Respondent started school at NBCC in September 2022, the

schedule changed. On Mondays and Wednesdays, she finished school at 3:30 p.m. It helped that the day care was next door to NBCC. As a result, the Respondent often brought the child to day care on her way to school. The Respondent or the Applicant’s mother would pick up the child after day care at approximately 4:30 p.m. [ 29 ] The child’s relationship with his paternal grandmother S.W. is, by all accounts, very close. She is, according to the Applicant, his favorite person. The child spent quite a bit of time with his grandmother who has cared for him whenever called upon.

The marital home is situated only two kilometers from where the grandparents live. The paternal grandfather is a mechanic by trade and therefore enjoys spending time with the child outside and in his garage. [ 30 ] The Applicant’s sister enjoys spending time with the child doing more interactive activities, such as volcano kits, baking and crafts. [ 31 ] Various photos were entered into evidence to depict the child interacting with the Applicant and his family. [ 32 ] The Applicant does not know the Respondent’s mother very well. They met at a music festival.

They really do not see eye to eye because she would take the position that “you are not moving to Canada”. They last spoke shortly before he moved to Canada in the spring of 2018. As a result, the Respondent’s family has barely seen the Applicant parenting the child since he was born. Furthermore, they never witnessed any arguments between the parties after they moved to Canada, although the Respondent testified that she would speak to her family almost daily. [ 33 ] The Applicant was asked why they did not spend more time with the Respondent’s family prior to separation.

His response was, firstly, that they did not have the financial resources to travel back and forth to the U.S.A. Second, the Respondent’s mother does not like him and she always got only one side of the story from the Respondent about their life in Canada. [ 34 ] The Respondent conceded that the child loves his father and that they spend a lot of time outside together. He brings the child to his workplace. He has given her “breaks from being a full-time mom” and not being “stuck in the house”.

She agrees that she has asked for help to take a break from parenting, including help from the Applicant’s mother and sister. She described S.W. and P.W., the child’s grandparents, as loving, but not very active, or “homebodies”. She agrees that the child and the Applicant’s sister did spend time and hung out together, but not often, perhaps once per month. Lastly, she admitted that when the Applicant was home, he was “present as a father” and took the child to dentist and doctor appointments. [ 35 ] The Applicant admitted to using cocaine in the past.

He estimated that they both used cocaine together approximately 12 times. He denied getting angry in the days that followed cocaine use. The Respondent confirmed that she has used cocaine approximately 12 times, but that the Applicant did it before they met. She says he knew he couldn’t “behave” after he used, so he stayed away from it. She stated that he was very unstable for days after using cocaine. The last time they did cocaine together was on her birthday, on July 22, 2022, with friends.

[ 36 ] The Respondent continues to consume cannabis recreationally a few times per week. She uses her cannabis “vape pen” three times per week and compared it to having a glass of wine. She added that she only does cannabis after the child is asleep and that he has never seen her do it. She described herself as a “stress non-eater” and that the cannabis helps her relax and eat. For clarity, here is her evidence on this point: Q. How often do you use marijuana? A. Just recreationally, a few times a week. Q. And [the child]’s in your care? A. It’s at night when he’s already asleep. Q.

And if he wakes up, you’re capable of looking after him? A. Yeah, absolutely. Q. How much marijuana are you using three times a week? A. Um, I don’t know. I have a little vape pen. I guess a few puffs. Q. What is a vape pen? A. It has a like a (inaudible) of cannabis oil in it and you screw it on to the top and you can puff a little puff off of it. It’s kind of similar to an e-cigarette. [the Applicant] uses one of those. Q. And I talking about you. So, how often – how much oil is in that pen? A. Like a half gram. Q. And you’re doing that three times a week on average? A. Yeah.

It’s like having a glass of wine at the end of the night. Q. And [the child]’s in your care? A. Not all the time. [ 37 ] The Respondent is adamant that despite the Applicant’s allegations, she has no mental health issues and has never received a formal diagnosis. In addition, she says that she has never struggled with personal hygiene. [ 38 ] S.W., the Applicant’s mother, submitted an affidavit and testified at the hearing. She felt that it was important to testify given the way in which the child was taken from the Applicant. She has worked as a nurse for almost 40 years.

She still works 7:00 a.m. to 3:00 p.m. in addition to working on a casual basis at the nursing home. S.W. works “flex-hours” and has picked up the child at day care and taken him to pre-school. S.W. has provided childcare and helped out when the Applicant was away for work. The home that she shares with her husband has a bedroom for the child so he can stay overnight if he wishes. [ 39 ] The parties stayed with S.W. and her husband for about eight months after they moved back to Miramichi. S.W. testified that the Respondent was not happy and felt as though they were intruding upon their privacy.

S.W. described the Respondent as a bit of a “control freak” and did not enjoy when they dropped in without notice to see them after they moved into the marital home. [ 40 ] When the Applicant was away from work, S.W. would assist the Respondent with anything she needed in terms of caring for the child including transportation to and from day care and to appointments. S.W. believes that if the child does not remain in Miramichi, his routine would be disrupted to his detriment. [ 41 ] Lastly, S.W. took issue with how the Respondent portrayed her in her Affidavit.

The Respondent’s evidence gave the impression that S.W. was somehow conducting herself in an inappropriate manner with the child. This suggestion was squarely addressed by S.W. during her testimony. For example, S.W. says that the Respondent totally misinterpreted finding the child asleep in her arms. S.W. explained that the child had been with her for six hours and fell asleep in her arms while they were watching a show. The child would have been three years old at the time.

Another example is when S.W. was wearing her robe after taking a bath and the rocking chair accidently went too far back causing her to react instantaneously to protect the child. The child was not injured whatsoever because of this inadvertent incident.

[ 42 ] The Applicant’s sister, M.W., also filed an affidavit and testified. She believes that the child was wrongfully taken from Miramichi and that his support system is here. She has a strong bond with the child because she has spent quite a bit of time with him over the years babysitting or otherwise helping with his care when she is not working as a nurse. She described the child as probably autistic and very shy, based on her observations of him interacting in groups of people.

She further believes that the child and his father have a close relationship. [ 43 ] Prior to November 1, 2022, the Applicant’s sister, M.W., spent time with the child doing various activities such as crafts, playing outside, going to the playground, taking him to pre-school, and swimming lessons. She saw the child frequently at her mother’s house as well. She further testified that the Applicant did confide in her and informed her that they had a “difficult relationship”.

By the time of the hearing, it was clear M.W. and the Respondent did not really have a good relationship. [ 44 ] The Applicant’s neighbor S.M. testified about her observations of the parties’ interaction as a family prior to separation. The essence of her testimony is that the relationship slowly dissipated. The Respondent was more reserved, and they never really spoke in contrast to the Applicant, who was more interactive as a neighbor. [ 45 ] C.L. testified that she worked with the Respondent between April 2021 and August 2022 and became good friends.

C.L. stated that the Respondent discussed her relationship with the Applicant with her and indicated that it was a “mixture of good and bad” and that she had some unhappy memories over the years. C.L. testified that the Respondent sent her text messages indicating that she feared going home. None of those text messages were introduced into evidence. [ 46 ] The Respondent’s sister, V.G., testified that she convinced the Respondent to file a police report after the June 2019 incident when the Applicant “pushed her up against the wall”. She testified about being in Court that she knew “this day would come”.

V.G. indicated that the child was at first shy when he arrived in the U.S.A., but then opened up to the family over time. [ 47 ] V.G. last saw the Applicant at Christmas time in 2017. She has never observed them as a family in Miramichi. Lastly, she admitted that the information that she relied on was provided to her entirely by the Respondent. [ 48 ] In a nutshell, the Applicant is prepared to care for the child and continue to build a life for him in Miramichi.

His employment is flexible, and he has a support system in place with his family who are prepared to assist whenever needed. [ 49 ] The Applicant intends to make sure the child continues to attend medical interventions with the caregivers that are already in place, including speech pathology and specialized pre-schooling interventions.

These interventions are important according to the Applicant because in his view, the child needs to be socializing and developing to avoid being underprepared for kindergarten in the fall of 2023. [ 50 ] The Applicant further says that the child would attend school in the fall and participate in extracurricular activities such as baseball and swimming. In other words, live the life of a “regular kid”. [ 51 ] The Respondent stated that she is very close to her family despite the distance that separates them. The child FaceTimes her family a lot.

She plans to stay at her brother’s residence where she shares a room with the child. However, that is not her long-term plan. She wants to “get her own place” eventually, either an apartment or a home. She has a retail management background and, as a result, she believes there are several employment options available to her in the U.S.A. She has also looked at an office management position given her work history at the naturopath clinic in Miramichi. She has not worked yet because everything is “in limbo” at the moment.

In other words, she plans to return to work once the outcome is decided. [ 52 ] The Respondent says that she has a lot of support back home from family and friends as well. Her mother lives with her brother. Three children come to stay every second weekend at their residence. The Respondent stated that while there are always beds available, some kids sleep on the couch, but not the child. She testified that her family would help her financially as well if necessary.

Furthermore, if allowed to relocate, the Respondent says she is willing to come back to New Brunswick with the child to visit in the summertime, or over Christmas or March breaks. The Respondent also indicated that there is no need for day care after relocation to the U.S.A. because her mother is retired and will care for the child while she works.

[ 53 ] The Respondent was asked during cross-examination if, in fact, this whole matter is about “you and your family”. Her response was that she wants to have a life with the child away from the father and with her family in the U.S.A. She admitted that for the Applicant and his son to have a relationship, he needs to rely on her word to ensure that she will continue to foster their relationship despite the alleged mistreatment between them. [ 54 ] According to the Respondent, co-parenting with the Applicant will be cordial and open after this matter is determined by the Court.

Relocation and Family Violence [ 55 ] On the morning of October 14, 2022, the parties were driving together, and an argument ensued. The argument escalated to the point where the Applicant, who was driving at the time, eventually turned to the Respondent, and spat on her. [ 56 ] The incident of family violence that occurred on October 14, 2022, which ultimately led the Respondent to flee the country with the child, was described in paragraphs 38 to 41 of her Affidavit as follows: 38.

On October 14, 2022, the Petitioner and I were driving to a local coffee shop and discussing some renovations that needed to take place in our home. 39. The Petitioner became upset because he felt that the renovations needed to be done before he left for British Columbia the following week. He was upset at me and said that I do not do enough to help around the house. 40. This is untrue, I do the majority of the cooking and cleaning in our home, especially because the Petitioner is away so frequently. The argument escalated, and the Petitioner motioned as if he was going to "backhand" the left side of my face.

He proceeded to tell me that he "wishes he could hit me". The Petitioner then spat on my face. 41. I pulled out my phone and began recording a video of my face, covered in spit. I turned the camera to the Petitioner and asked him to confirm that he had just spit on me. He denied that this had occurred. I sent a text message to the Petitioner's mother, [S.W.], immediately after this incident explaining what had a happened.

A copy of that text message is attached hereto and marked "A". [ 57 ] The video referred to in paragraph 41 of the Respondent’s Affidavit was not produced as evidence. [ 58 ] The Respondent testified that October 14, 2022, was a Friday and the Applicant was “stressed out” because he was leaving for work on the following Monday, and he had not completed the work he wanted to do around the house. There was an argument. He was overwhelmed with stress. She denies ever touching him at any time. He threatened her with a back hand and allegedly said he wished he could hit her. He instead spit in her face.

She went to the police, but nothing happened thereafter. No police report was submitted as evidence. [ 59 ] The Respondent testified that she is afraid of the Applicant and that he is very mean. [ 60 ] The Respondent was asked if she provoked the Applicant on October 14, 2022. Her response was that it was a “mutual argument”. She denied, on cross-examination, ever touching the Applicant and hitting him with her shoulder. She then stated that she later told a schoolteacher about what happened. The Respondent agreed that she returned home after this incident knowing the Applicant would be there.

However, she added that he went to stay at his parents’ house on October 16, 2022, the day before he was supposed to leave to work in British Columbia. So, she saw him after October 14, 2022, but then testified that “had he stayed at his parents’ place, I would not have left” for the U.S.A. She testified that she did not feel scared enough at that time to “flee” and that she was “okay” 24 hours later. [ 61 ] In any event, the Applicant says paragraph 40 is untrue and that he did not do that. He gave his own version of that incident.

[ 62 ] The Applicant provided some context to what happened in cross-examination. He says that they were going to get a coffee, then changed their minds. She started screaming at him, in his ear, while he was driving. He says she made contact with him in that moment. He then made a swatting gesture and spit on her. He informed the Court that he very much regrets what happened. [ 63 ] Immediately after this incident on October 14, 2022, the Respondent exchanged text messages with the Applicant’s mother, S.W. which said this: [The Applicant] just spat on my face [S.W.].

I can’t. [The Respondent] there is no one at my place till I get home from Moncton The password for the internet is where the printer in - is. Okay thank you. [illegible] (…) Are you ok I’m ok. [Page 158 of Trial Record]. [ 64 ] In cross-examination, the Applicant’s mother, S.W., admitted that the Respondent told her about the spitting incident. She indicated that the Respondent never confided in her and did not really talk much about her relationship with her son. In fact, S.W. went to the marital home on October 21, 2022, to discuss the installation of the heat pump by her husband planned for the next day.

The visit was tense, according to S.W., because her husband had made suggestions about moving certain furniture to prepare for the installation. The Respondent was not happy about that because she was alone with the child and believed that all of the planning had been sorted out already before the Applicant left to work in British Columbia.

S.W. stated that between October 14 th and the October 21 st , 2022, visit, she had no idea that the Respondent was planning to leave with the child, nor at any time prior to November 1, 2022. [ 65 ] On November 1, 2022, the Applicant received an email from Bell Mobility advising that his cell phone was “roaming” in the U.S.A. He was working in British Columbia at the time on a 14-day rotation. That was the first notice he received that the Respondent had left Canada with the child.

The Applicant was scheduled to return back to New Brunswick on November 2, 2022. [ 66 ] The Applicant called the police to advise them of what was happening. He gave the Police various phone numbers of the Respondent’s family to assist them in locating the child.

The Police advised the Applicant that there was nothing they could do to assist until proof was obtained that the child would not be returned. [ 67 ] On November 2, 2022, the Applicant then received a copy of a text message that the Respondent had sent to the day care, which stated as follows: Good morning Crystal, [the child] won’t be in today because we left Canada and we moved back home to my family. [the child] and I both being America [sic] and we haven’t been home since 2018…I just wanted to thank you for absolutely everything you were truly an angel in mine and [the child]’s life. [Paragraph 36 of Affidavit, page 12 of Trial Record] [ 68 ] On November 2, 2022, the Respondent sent the Applicant an email to give him notice of her intention to relocate.

The email reads as follows: I'm sure you are aware by now that [the child] and I left Canada and flew home to Seattle yesterday on November 1, 2022. Im (sic) just reaching out to let you know he is safe and we are in Washington at my brothers (sic) house. Due to the assault on October 14th, 2022 I really don't feel safe with you coming home.

I drove the white Honda Accord across the border into Maine. It is parked at 24 Walton Drive Brewer, Maine 4412 at Walmart. [Pages 116-117 of Trial Record] [ 69 ] The Applicant testified that the Respondent has previously threatened, on many occasions, to return to the U.S.A. without him. In any event, the Applicant stated that the Respondent left almost all of the child’s belongings behind. [ 70 ] S.W. testified going “near crazy” when she was informed about the relocation. She reached out to the Respondent’s mother who confirmed that they “were good”.

She was concerned because the child is “so routine” oriented and likes “familiarity”. She believes that it would be hard for him to leave his current situation. She testified that the Respondent brought the child over to her residence for Halloween, on October 31, 2022, the day before she left with him. They drove to her daughter’s (also S.W.) residence and went “trick or treating” together. As they were leaving, S.W. asked the Respondent if they were “good for Wednesday” and she responded yes.

There were no indications that the Respondent was planning to relocate the next day. [ 71 ] S.W. had immediate concerns about the relocation because the child would have no contact with his father and his day care in Miramichi is affiliated with the school system and that pre-school preparations were in order. [ 72 ] FaceTime calls were arranged between the child and the Applicant but he says they were cancelled more than once.

In fact, he said that there was an eight-day period where he did not speak to his son but then clarified that four of those days were agreed upon due to the Respondent spending Thanksgiving with her family. From November 1, 2022, to Thanksgiving, three or four FaceTime calls took place per week between the child and the Applicant. [ 73 ] The Applicant’s sister, S.W. testified that the Respondent “cut off” FaceTime calls between her and the child while he was in the U.S.A. If they were having a family FaceTime call with the child, the moment she said anything, the Respondent ended the call.

The Respondent allegedly accused her of slander. But S.W. testified that she was not even aware that the Respondent did drugs in the past. [ 74 ] As noted above, the Respondent made allegations of family violence against the Applicant in her Responding Affidavit and maintained them during her testimony at the hearing. In fact, she testified that she feared the Applicant and that family violence formed the basis of her decision to relocate.

I will therefore review those allegations and consider the Applicant’s response to each of them. [ 75 ] The Applicant states the following at paragraphs 18 and 20 of her Affidavit: 18. The Petitioner told me repeatedly throughout our marriage that I had ruined his life, and that having our son was a "huge mistake". He would often threaten to divorce me and would tell me that I would never get custody of [the child]. 20. The Petitioner often becomes physically violent.

I have witnessed him break a wine rack, smash an empty crib on the ground, throw a drinking class at a kitchen window, throw TV remotes against the wall, break a key tray, and punch the windshield of my vehicle, which shattered the glass. [ 76 ] The Applicant completely denies that having a child was a huge mistake and denies making any such threats. As to paragraph 20 above, he said he is not physically violent. He admits to saying things that he regrets, and that some of the arguments were “physical” but that they were “a two-way street”. He said the wine rack is still in the same spot it’s always been in.

He says he was putting clothes away and stubbed his toe on the crib which pushed up against the wall. He never threw glasses at the window, nor did he throw the remote. Plus, he says they didn’t have a key tray. There was no shattered glass incident. Rather, the Applicant refers to an incident while they were in San Francisco when he parked the vehicle and later found that someone had looted it and stolen his new GoPro worth about $500. [ 77 ] The Respondent clarified during her testimony that the Applicant was referring to the wrong incident in San Francisco.

The “break in” incident was not what she was referring to. She says they were heading to work. The Applicant was in the front passenger seat of the vehicle. They had an argument, which led to the Applicant punching the windshield and shattering it. [ 78 ] She also recounted the incident where the Applicant, after another argument, threw a glass at the window and broke it.

According to the Respondent, the window stayed “taped up” for one and a half years after that incident. [ 79 ] She said the key tray that she referred to in her Affidavit was a two-tier decorative tray. During another argument, the Applicant pushed it off the half wall and it broke. [ 80 ] The Respondent then admitted that she was physically violent with the Applicant as well. She admitted that in the spring of 2017, she has “pushed him” into a wine rack, but has done nothing else like that since that time. [ 81 ] Next, the Respondent states at paragraphs 21 and 22 of her Affidavit that: 21.

I was terrified of the Petitioner because of these outbreaks and felt trapped in the relationship because I had no income for the majority of my time in Canada. 22. Throughout our relationship, the Petitioner and I would have a serious fight at least once every three months. During these fights, I would typically resort to locking [the child] and myself in the master bedroom of our home overnight for our safety, given the Petitioner's history of angry outbursts which have repeatedly led to violence on his part. [ 82 ] The Applicant does not believe “for one second” that the Respondent was terrified of him.

In fact, he says that the arguments they had involved her as much as him, and she was never scared of him. They did have serious verbal arguments, after which he would leave the property and go for a drive. The Respondent and the child were asleep by the time he returned. [ 83 ] He recalls that they separated on April 25, 2021, for approximately two to three months. They had a nesting arrangement at that time and shared the marital property. They took turns staying with friends or family while the child was not in their care.

This is confirmed by the Respondent as well in paragraph 23 of her Affidavit [Page 106 of Trial Record]. However, they subsequently reconciled. [ 84 ] The Applicant stated that unfortunately the child was exposed to some of the verbal fights and that he is “sick about it”. [ 85 ] Paragraph 29 of the Respondent’s Affidavit reads as follows: 29. For the most part, the Petitioner only destroys property when he is angry.

However, there have been two incidents of physical violence towards me in the past, as well as one incident of physical violence towards [the child]. [ 86 ] The Applicant says that once he swatted a plastic cup which hit the counter and then the window. He explained that that incident occurred because the Respondent was trying to flee the country. His apology was accepted by the Respondent, and they carried on with their lives. [ 87 ] Paragraph 30 of the Respondent’s Affidavit states that: 30. In June 2019, the Petitioner assaulted me in our home. We had been arguing, and our argument was escalating.

I knew that I needed to leave our home to protect [the child], who was 16 months old at the time. [ 88 ] The Applicant testified that this evidence was not correct. He further testified that paragraphs 31 to 34 of the Respondent’s Affidavit that relate to the same incident are also not correct. Those paragraphs read as follows:

31. The Petitioner would not allow us to leave and threatened to take [the child] from me, so I locked myself and [the child] in the master bedroom. The Petitioner threatened to break the door down, so I opened the door. 32. I was holding [the child] in my arms, so I did not think the Petitioner would hurt me. However, as soon as I opened the door, the Petitioner put his palm over my face and shoved me backwards into the doorframe of our ensuite bathroom. 33. I was holding [the child] for the duration of this incident. I tried to run away, but the Petitioner shoved me (and [the child]) onto the bed.

He took my phone so that I could not call for help. 34. Eventually I was able to get away from the Petitioner. I left our home with [the child] to go for a drive in an attempt to deescalate the situation. I called my family on that drive to advise them of what had just occurred. I ultimately returned home about an hour later. [ 89 ] The Applicant’s version is that the Respondent was trying to leave the home to return to the U.S.A. with the child. He “restrained” her from doing so, nothing more. He admitted that he handled the situation “horribly” and that he should have called the police instead.

During cross-examination, the Applicant denied pushing the Respondent on the bed. He testified that she was taunting him and that she had her bags packed at the door, so he restrained her from leaving with the child. He completely denies any physical contact with the child. In hindsight, he says he should have called the Police. [ 90 ] The Respondent testified that after the Applicant put his palm in her face, she called the Police a few days later, filed a report but nothing happened after that and there was no follow up or any charges laid against the Applicant.

No police report was submitted as evidence. [ 91 ] The Applicant disputes the incident referred to in paragraphs 36 and 37 of the Respondent’s Affidavit and vehemently denies that she was ever afraid of him. Those two paragraphs read as follows: 36. In early October 2022 the Petitioner was changing [the child]'s outfit, and [the child] was squirming and making it difficult for the Petitioner to change him. The Petitioner lost his temper, palmed [the child]'s face, and yelled at him to "shut up". 37. I quickly intervened, but [the child] was very upset.

Ever since that incident, [the child] has seemed to be very afraid of the Petitioner, and I have been afraid to leave [the child] in the Petitioner's care. [ 92 ] The Respondent repeated the allegation during her testimony. She explained that the child was “wiggly” and was in someone’s arms for a short period of time. The Applicant then put his hand over the child’s mouth and said, “shut up”. She reacted and the child started to cry. [ 93 ] Paragraph 45 of the Respondent’s Affidavit conveys the essence of why she decided to relocate with the child without notice. It reads as follows:

45. I felt as though I was being held hostage in Canada. I felt like I had no choice but to leave without notice, because I knew that otherwise I would not be able to bring [the child] with me. I was terrified. [ 94 ] The Applicant has a very different perspective. He says that the Respondent repeatedly told him that “[the child] and I are American. We do not have to live here” and “I am going to ruin your life and you will never see your son again”. [ 95 ] The Applicant insisted in his testimony that the Respondent was also physically violent toward him, especially early in their relationship.

He recalls one incident where she shoved him down onto a sidewalk. He has never been charged, but says the Respondent received a DUI charge and another for spitting on a bouncer in Washington State. [ 96 ] In cross-examination, the Applicant denied that he struggled with anger management. He did see a psychologist however to discuss their relationship. He admits to two incidents involving physical altercations between them.

He agrees that they both took it too far and says that verbal arguments were “a weekly occurrence”. [ 97 ] The Respondent believes that the Applicant has anger management issues and had them from the beginning of their relationship. He has a short temper and often resorted to name calling and yelling. [ 98 ] In cross-examination, the Respondent admitted that the Applicant and the child are “good now”, that the child loves to be teased and the Applicant is “good at it”.

She admitted that they lived in a dark environment before, but that it was not consistent and that she contributed to it by engaging in name calling. She acknowledged demonstrating anger toward the Applicant since the beginning, sometimes in the child’s presence. She agrees that she has demonstrated “poor judgment” in the past. [ 99 ] S.W., the Applicant’s mother, testified that they argued their whole relationship. She stated that her son does not have a “passive personality” and that he speaks with a lot of emotion but not to the extent of “bashing up the house”.

To her knowledge, the Applicant has never taken any anger management course. When asked if she had concerns that her son would “push” the Respondent again, S.W. testified that it would not happen again because they are not together anymore. [ 100 ] In addition, the Respondent testified that she met with the Applicant’s aunt and another person after the October 14, 2022, incident and confided in them at dinner. They were not aware of how bad the relationship had become. The aunt offered to purchase a flight for the Respondent to return home, so she accepted the offer.

The Respondent said because of the pandemic and financial constraints she could not leave any sooner. [ 101 ] The Applicant is opposed to the relocation for several reasons. He has always been a huge part of the child’s life. He says he has given everything he can to his son as a Father. [ 102 ] Not surprisingly, the Respondent was asked why she left with the child. She testified that she left because she is scared and that her safety was in jeopardy because of the assault on October 14, 2022. There was also a “history of text messages” and that she knew he did not want to leave the marital home.

None of those text messages were submitted as evidence. She knew they were separating and going down another path. Furthermore, they had separated once before, and the nesting arrangement did not work. [ 103 ] The child’s time in the U.S.A. was described by the Respondent as being “great”. It was like a family reunion because the child saw everyone, including his cousins. They did a lot of activities while they stayed with her family.

[ 104 ] The Respondent testified that they moved to Miramichi to be a family and that does not exist anymore. She says it was a hard transition and that she “gave it her all”. She is not from here and far from her roots. [ 105 ] The Respondent acknowledges the impact that relocation will have on the relationship between the child and his father and that it will be hard. However, she testified that the child has been exposed to a lot and is scared of his father. She is nonetheless very open to the Applicant seeing the child a lot, even for a full month in the summertime, a week at Christmas and over March break.

The Applicant is welcome to visit the child in the U.S.A. as well. However, she has no financial means at the moment to assist with the cost of travelling back and forth to the U.S.A. She does believe that it is important for them to spend time together despite her intended relocation. If relocation is permitted, the Respondent says she will allow FaceTime calls with all the Applicant's family members. [ 106 ] The child is currently “number one” on the list to get into the day care again.

The Child’s Special Needs [ 107 ] The parties cannot agree about the child’s needs mainly because they both have a different belief about what the diagnosis is at this stage. For example, the Respondent does not believe the child is autistic or on the autism spectrum, whereas the Applicant states that the child has received the diagnosis of autism and in fact, has undergone various treatment modalities to assist him in his development.

They both however, agree that the child has developmental delays and that he does need special medical and educational care. [ 108 ] Exhibit 1, Tab 15 contains test results of the child’s eye examination on October 27, 2022. It demonstrates that the child is experiencing significant difficulty with awareness of self and his environment, whereas other testing of cognitive skills, language and communication, and physical development testing was not completed.

No reasons were provided about why certain testing was not completed. [ 109 ] The child has seen professionals at Viva Therapeutic Services as recently as January 4, 2023. Viva Therapeutic Services provides autism intervention services.

The Applicant testified that the Respondent did not attend this appointment because she does not believe the child is autistic. [ 110 ] Although no experts were called to testify at the hearing, certain medical information was provided as part of the Applicant’s Affidavit, without objection by the Respondent. [ 111 ] Speech pathology and/or therapy intervention at the Miramichi Hospital is also part of the treatment plan.

After evaluation, the speech-language pathologist Monette LeBlanc indicated in her report dated May 11, 2022, that “although [the child] does not demonstrate strong characteristics of autism, he does present certain milder traits.” Ms. LeBlanc supported further evaluation and sent referrals to occupational therapy and physiotherapy. She also asked Dr. Ahmed, the child’s family physician, in her report to consider referring the child to Dr. Dickinson, a pediatrician.

The report further confirms that the Applicant attended the appointment with the child. [Trial Record, p. 40]. [ 112 ] Further to the above referrals, the child’s gross motor skills were assessed as per the report dated June 6, 2022. In terms of behavior, it was noted that the child “does not like to be center of attention; likes routine; does listen – not concerned w/ safety.” The same report further noted delay with respect to the child’s receptive and expressive communication and “moderate gross motor delay”.

The goal was to provide the family with activities to work on at home. [Pages 66-67 of the Trial Record]. [ 113 ] The Applicant continues to have concerns with respect to the child’s speech and says that he has trouble paying attention, reduced social skills, and observed that the child has difficulty in new places or with unfamiliar people. [ 114 ] The Applicant believes that the diagnosis of autism was “understood and concluded”. Since the Respondent has disputed the diagnosis, the Applicant has concerns about her ability to make medical decisions for the child.

[ 115 ] The Respondent agrees that the child is behind in his development. They first noticed it when a teacher spoke about possible hearing issues. They went forward with the autism resources, including speech therapy and naturopathic treatments. She says she spent a lot of time attending appointments. [ 116 ] In June 2022, they had a meeting with Dr. Dickinson. The Respondent says Dr. Dickinson could not determine with certainty if the child was autistic but did confirm that his development was very delayed. Apparently, the Applicant was not present at this appointment. Dr.

Dickinson gave the Respondent two choices namely, to either attend the Hospital for speech therapy or to attend Viva Therapeutic Services to help with autistic assessments in the day care setting. They chose the Viva Therapeutic Services option, but the Respondent says they still do not have a formal diagnosis of autism. [ 117 ] On cross-examination, the Respondent agreed that the child has undergone several interventions since the hearing test in the fall of 2021. Again, she agreed that the child is very delayed. The child’s speech is behind, and he is socially awkward.

The child is, according to the Respondent, now doing well. He is speaking full sentences (8 words at a time) and improving. She believes that time has caused improvement, in addition to speech therapy. [ 118 ] The Respondent does not deny that it is important for the child to have enhanced social development. She testified that if he is autistic, she will find resources where she plans to relocate because there are “a ton available”. [ 119 ] Since relocating to the U.S.A. on November 1, 2022, until their return to New Brunswick on December 21, 2022, the child has not had any interventions.

The Respondent was asked why. Her response was that she didn’t know what was going to happen, but after she was served with the Application on Thanksgiving, it was “go-time”. She then testified that the child was having interventions with his cousins. The ICO and the Return to New Brunswick [ 120 ] The ICO provided that the parties would enter into a nesting agreement to share the marital property until the matter is determined. [ 121 ] In accordance with the ICO, the child returned to New Brunswick in the early morning hours of December 21, 2022.

By all accounts, the child was happy to see the Applicant and family members again despite the long trip. They talked all the way home and spent the next four- and one-half days together. [ 122 ] Since his return to New Brunswick, the child has essentially returned to his routine by attending Play Learn pre-school two sessions per week, three hours per session. The Applicant testified that Play Learn held a spot for the child despite his sudden departure.

In addition, the child spends time, and has fun, with family since returning to New Brunswick. [ 123 ] Both parties testified that they have followed the ICO without any issues. They presented text message to establish that the communication and cooperation between them during this time has been positive despite the history they share. Some of these text messages, according to the Applicant, are examples of them being able to “give and take” and co-parent.

The Applicant stated that they are getting along well right now despite everything that has happened in the past and the allegations. [ 124 ] The Applicant says that the child is happy to be home, although he appeared to be somewhat “nervous and confused”. He said it is difficult to accurately gage the child’s reaction and feelings because he has special needs. S.W., the Applicant’s mother, was at the airport when the child arrived from the U.S.A on December 21, 2022.

She said that the child “never missed a beat”, stayed awake and held his father’s hand the entire ride home. [ 125 ] The Respondent insisted that the ICO include a provision that the Applicant’s family could not be alone with the child.

S.W. did not understand why this was included in the ICO. The evidence was that one of the concerns related to the Applicant’s sisterallegedly spreading rumors about the Respondent being a drug user, so she felt that there was no need to continue to foster a relationshipbetween the child and the Applicant’s family. The Applicant’s mother respected her request but stated that there were no safety concernswhatsoever and nonetheless emailed the Respondent to request time alone with the child.

Her request was denied. [126] The Respondent stated that the post ICO text messages between her and the Applicant do not reflect their communication asa rule. She says that the tone of the Applicant’s text messages was historically “all over the place”; sometimes they were happy and othertimes they were mad or sad. ISSUES [127] This matter is governed by the Divorce Act, RSC 1985, c 3 (2" Supp) (the Divorce Act).

The parties are asking the Court toissue a Parenting Order pursuant to the Divorce Act where one parent seeks authorization to relocate to the U.S.A. with the child. [128] The analytical approach that I will take in this case is the same one referred to in other decisions, including by Petrie, J. in inD.C.W. v. A.C.M. 2022 NBQB 106 at paragraph 82: 82.

Various family judges in this province, when dealing with relocations since the introduction of the new Act, have chosen to reviewthe “best interests” factors first, before moving on to the analysis of any relocation request and a consideration of the section 62(1)factors. See for instance: R.V.C. v. N.A.G., 2021 NBQB 139 (Bourque J); J.D. v. R.D., 2021 NBQB 186 (Bélanger-Richard J.); andB.R.C. v. K.L., 2021 NBQB 147 (Godbout J). I will adopt the same approach. [129] The issues are therefore as follows: 1. Credibility. 2. What Parenting Order is in the best interests of the child? 3.

Should relocation be authorized pursuant to s. of the Divorce Act? [130] I will therefore first address the credibility issue. I will then refer to the applicable legislative framework in addition to thejurisprudence that governs the analysis. I will then apply the relevant criteria to the facts of this case to determine what Parenting Orderis in the child’s bests interests in addition to determining the relocation issue.

LAW AND ANALYSIS Credibility [131] Credibility is an important consideration in this case given the nature of the allegations which include family violence, butalso because of contradictory evidence on other relevant factors. [132] In A(

A) v. B(M), 2014 NBQB 197, Madam Justice Wooder provided the following guidance in terms of assessingcredibility at paragraph 97: 97. Assessing credibility is a sifting of nuances, impressions and observations impacted by such things as a witness’ demeanour, toneand candor, as well as the context of his or her evidence. I have in other decisions referred to Kitely, J’s observations in Passarello v.

Passarello, 1998 CarswellOnt 2983 (Ont. Gen. Div.) and the criteria established by her by reference to “The Law of Evidence inCanada” by Sopinka J., and Lederman, J.: (

i) the reasonableness of the evidence (ii) whether there are contradictions in the evidence (internal consistency”) (iii) whether the witness’ character has been impugned (iv) personality, demeanour and corroboration (“internal consistency”) (

v) self-interest (vi) powers of observation and recollection (vii) capacity of expression [133] I would also refer to the late Justice Walsh’s comments in Grover v. Ecerova, 2018 NBQB 8, at paragraphs 103 to 104: 103. Credibility assessments are required to be made. There are in essence two aspects to credibility - veracity (i.e., truthfulness) andreliability (i.e., accuracy), but one does not necessarily lead to the other. Put differently, a court must be cautious for even a witnessendeavouring to be truthful can be inaccurate.

As well, it must be recognized that a court can accept all, part, or none of a witness’sevidence, although a finding that a witness was deliberately untruthful on one aspect of the evidence might infect that witness’s entireevidence. 104. There are any numbers of factors that can guide a court in assessing credibility. They include plausibility, internal and externalconsistency, powers of observation, ability to recollect, self-interest, etc. (See: O'Brien v. O'Brien 2011 NBQB 179 at para. 102 (B.M.Robichaud J.) and D.(G.) v.

D.(M.) 2005 NBQB 253 at para. 95 (Wooder J.)); common sense and logic being the underlying assessmenttool. I refer often to the following: ... There can be no rule as to when and to what extent inherent improbability must be taken into account by a trial judge. As LordHoffman observed...: ... common sense, not law, requires that in deciding the question, regard should be had, to whatever extent appropriate, to inherentprobabilities. (F.H. v. McDougall 2008 SCC 53 at para. 48) [134] Also, in S.F.D. v.

M.T., 2019 NBCA 62 , Baird, J.A. succinctly stated what the assessment of credibility involves“at the end of the day”, as follows: [30] McLachlin C.J. in R. v.

R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, writes: While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on aparticular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize.Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about thewitness; […].

In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and completeverbalization. [para. 49] [31] At the end of the day, assessing conflicting evidence is a weighing exercise which requires a trial judge to use his or hercommon sense and experience.

[ 135 ] There were several incidents of family violence over the years, including the spitting incident on October 14, 2022. Family violence inevitably leads to deep mistrust and negatively impacts children. The Applicant admits to spitting on the Respondent. Such a reprehensible act sends a terrible message and is unacceptable behavior under any circumstances. [ 136 ] The Respondent stated in her Affidavit that she “felt trapped in the relationship because I had no income for the majority of my time in Canada”.

However, it bears repeating that the Respondent worked 15 hours per week at Cannabis NB from August 2020 until April 2021, but then worked full time from April 2021 until September 2022, at which time she decided to go to school, presumably so she could find employment and continue to earn the same or more income. [ 137 ] The Respondent also stated in her affidavit that she felt like she was being held hostage in Canada, and that she felt like she had no choice but to leave without notice “because I knew that otherwise I would not be able to bring [the child] with me.

I was terrified.” [ 138 ] However, the Respondent cannot blame the Applicant entirely for her situation because she played a role in making their relationship like “oil and vinegar”. She admits that she “stirs the pot”, that they both need to “voice their opinion” when they don’t get along, that she too was physically violent toward him at least once, exercised poor judgement, and that she did “make a motion” toward the Applicant before he spit on her. Here is how she explained the October 14, 2022, incident in cross-examination: Q. On October 14 th - we’re all aware of what happened on October 14, 2022.

Is it your evidence that you did nothing to provoke that argument? A. I mean it was a mutual argument. I did, I guess, it was a mutual argument so – I mean we’re like oil and vinegar, like we don’t – when we don’t get along, we both need to voice our opinion, so. Q. He claims that you hit him in the head before he spit on you. A. Did not touch him. Q. Hit him with your shoulder? A. No, I did not even touch him. Like I mentioned, he said, I always am stirring the pot. And so I did a motion, I’m stirring the pot but I did not touch him. Q. So you did do the motion that he indicated you did? A. I did. Q.

But you’re saying you did not make contact with his head? A. No, I didn’t touch him. Q. And you’re 100 percent confident of that? A. Yes, I am. [ 139 ] I observe that the Respondent omitted from her Affidavit some of the details leading up to the October 14, 2022, incident including that she made a motion toward the Applicant. In addition, the Respondent testified that she told her teacher at school about the October 14, 2022, incident, but did not mention that in her Affidavit either.

Although she stated that she went to the police after that incident, no police report was tendered as evidence at the hearing of this matter, nor was the video she referred to in her Affidavit. [ 140 ] The suggestion was made to the Respondent in cross examination that her decision to relocate was made mostly through her own lens, in the sense she wanted to return to her home, with the child. I think there is some merit to this point.

The evidence is that she wanted the ability for her son to experience a life where she is from and she knew “going into the marriage that it was going to be difficult being in separate Countries and everything, that’s why we eloped. That’s why we got married really quick. Getting pregnant wasn’t part of the plan.”

[ 141 ] I think that, as the Respondent stated, they both knew it was going to be difficult because the Respondent lived so far from her family and also, that her family really did not want her to move to Canada. In this case, arguing was a “weekly occurrence” as the Applicant stated. Their relationship had inherent tension built into it, which unfortunately manifested itself in incidents of recurrent family violence over time.

Both of them contributed to the family violence and demonstrated poor judgment before, and after, the child was born. [ 142 ] I do not accept the Respondent’s testimony that she was “terrified” of the Applicant. Her testimony on this point is not convincing when considered in the context of some of her other testimony that I did not find plausible. Further, her evidence on this point is not inherently probable in the context of the totality of the evidence. ( See: F.H. v.

McDougall 2008 SCC 53 at paragraph 48 ). [ 143 ] I will provide a few examples. [ 144 ] First, the days that followed the incident on October 14, 2022, were described as follows by the Respondent: Q. Right. Isn’t it true that you returned home on October 15 th , that Saturday after October 14 th ? A. Yeah, we were both at the house. [the Applicant] did leave for the evening to go over to his buddy, Ralph’s, who was also working on our home to do trade work. He didn’t come home until 10:30 or 11:00. Q. But you did return home on October 15 th ? A. I had no where else to go. Q.

And you knew [the Applicant] would be present at home, is that correct? A. Yes. Q. And then he goes to his parents’ house that evening of October 15 th ? Correct? A. Um, it was the Sunday. The 14 th was Friday, so he stayed at his parents’ house the day before he left. Q. And when did he leave? A. He left Monday morning. Q. October 17 th ? A. That’s right. Q. So, when your lawyer asked you, you had indicated, well I hadn’t seen him since October 14 th . So, that wasn’t accurate? A. That’s correct. That was inaccurate. Q.

And I have you as saying, had he said he would have stayed at his parents’ house, I would not have left. A. That’s correct. [ 145 ] Another example is the Respondent’s testimony that the child fears or is scared of the Applicant. I did not find this testimony reliable, and I do not accept it. There is ample evidence to refute this contention. Part of that evidence included the Respondent’s own contradictory admissions in direct and cross-examination. She testified that the Applicant met the child’s needs and recounted all the things he did for the child, including the activities they enjoyed together.

Despite her testimony and affidavit evidence that the child was nonetheless scared of the Applicant, she then stated that they were now “good” and that she was willing to allow lengthy parenting time. Furthermore, the evidence is that the child was very excited to see his father when he returned to Canada and held his hand for the entire drive home is uncontradicted. All of that evidence is inconsistent with the child fearing his father.

Other evidence to refute this contention includes the Applicant’s testimony, in addition to his mother’s and sister’s evidence, as well as the recent photos that depict a happy child alongside his father. [ 146 ] In addition, I do not accept the Respondent’s testimony that the Applicant’s mother acted inappropriately with the child at any time. I accept S.W.’s explanation that her intent was never anything other than in the child’s best interests. The Respondent tried to cast a negative image upon S.W. to help justify that leaving the child in Miramichi would be inappropriate. Furthermore, the

Respondent’s aspersions with respect to S.W.’s involvement in the child’s life are inconsistent with this part of her testimony: Q. So you would have heard the extent that they describe [S.] and [P.] babysitting and caring for [the Applicant] since he moved to Miramichi? A. For [the Applicant]? Q. Yeah – oh sorry, [the child]. A. Um, yep. Q. Do you dispute their characterization of that? A. No. Q. You don’t? I can’t hear you. Is it that you don’t dispute that? A. That they took care of him? Q. Yes. A. Yeah, they did. Q. To the extent they describe? A. Yeah, they took care of him. Yeah. Q.

To the extent they describe. You agree with that? A. I don’t – I guess I don’t understand to what extent. Q. You heard them testify yesterday. A. Yeah. Q. That they did a ton of care. Almost every day. A. Yes, they did. Q. And you agree with that? A. Yes. [ 147 ] It is difficult for the Court to accept that the Respondent requested and accepted that the Applicant’s family provide “a ton of care” for the child if she truly believed that S.W. was somehow acting inappropriately. [ 148 ] These are some examples of the Respondent’s testimony that she used to suit her narrative.

Another example is her admission that she was not forthright in her affidavit about the Applicant’s work

schedule over the course of their relationship. She attempted to convey an incorrect message about his work

schedule to the Court to bolster her argument that she was the primary caregiver. For clarity, this is the Respondent’s testimony on this point: Q. So how important is it to you that [the child] has structure and routine and that they are maintained? A. It is important. I’m the one that’s established a lot of his structure and routine. Like I mentioned, [the Applicant] comes and goes a lot . He – he worked away – Q. Yeah, you say [the Applicant] came and went a lot. You also said that for the majority of your relationship he was two weeks on and two weeks off. A. Yeah, and that was incorrect. Mmm-hmm.

That’s the ideal shift to have is the two weeks on, two weeks off. Q. But you were incorrect when you made that statement in your affidavit? A. Yeah, that’s right. Mmm-hmm. [ 149 ] Lastly, both parties admitted that they have used cocaine approximately 12 times together up to and as recently as July 22, 2022, to celebrate the Respondent’s birthday. Yet the Respondent testified that the Applicant became angrier in the days that followed cocaine use. The Respondent’s decision to celebrate her birthday by jointly using cocaine with the Applicant does not leave the Court

with the impression she was terrified of him. [ 150 ] In

summary, I do not accept significant portions of the Respondent’s testimony based in part on her own inconsistent admissions, because other reliable evidence is inconsistent with her statements in addition to my observations of her in Court. [ 151 ] Having said this, the Applicant has, in my view, downplayed some of the incidents of family violence and tried to minimize the role he played. He has admitted to certain incidents. These admissions are made against his self-interest and demonstrates a certain candor and even regret.

However, his evidence to the effect of allegedly only “restraining” the Respondent during one incident is, I believe, an example of him downplaying the extent of his actions. [ 152 ] In addition, he stated that he had to leave the residence and go for a drive after certain arguments. This suggests that he needed time to “cool off”.

It also gives rise to the inference that he does have anger management issues, despite his denial. [ 153 ] The Applicant’s evidence that he should have called the police instead cannot justify his behavior, which contributed to the situation that he finds himself in now, having to challenge the request by the Respondent to relocate with the child. In my view, the Applicant’s act of spitting on the Respondent demonstrates a mindset that is reprehensible.

This mindset leads me to believe that the role he played in terms of incidents of family violence is greater than he has suggested to the Court. [ 154 ] In essence, the Court has concerns about some of the evidence presented by both parties with respect to certain events and facts. The difficult task is to now determine what parenting order, in the context of a long-distance relocation request, is in the best interests of the child based on the legislative requirements of the Divorce Act and applicable jurisprudence. Legislative Framework [ 155 ] With respect to parenting time and decision-making responsibility,

section 16 of the Divorce Act , RSC 1985, c 3 (2" Supp) governs, and specifically provides, that the primary consideration is the child’s physical, emotional, psychological, safety, security and well-being. 16

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

(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. (…) Parenting time consistent with best interests of child

(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. [ 156 ] I will apply all the relevant factors pertaining to the best interests of the child set out in s. 16(3) (

a) to (

k) of the Divorce Act below.

[ 157 ] In this case, allegations of family violence have been raised and argued. In considering the impact of family violence, I will also apply the factors set out in section 16(4) (

a) to (

h) of the Divorce Act below. [ 158 ] I further refer to the definition of family violence in s. 2(1) of the Divorce Act : family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes (

a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person; (

b) sexual abuse; (

c) threats to kill or cause bodily harm to any person; (

d) harassment, including stalking; (

e) the failure to provide the necessaries of life; (

f) psychological abuse; (

g) financial abuse; (

h) threats to kill or harm an animal or damage property; and (

i) the killing or harming of an animal or the damaging of property; [ 159 ] The following sections of the Divorce Act are also relevant to this matter and govern Parenting Orders: Parenting order 16.1

(1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by (

a) either or both spouses; or (

b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent. (…) Contents of parenting order

(4) The court may, in the order, (

a) allocate parenting time in accordance with

section 16.2; (

b) allocate decision-making responsibility in accordance with

section 16.3; (

c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and (

d) provide for any other matter that the court considers appropriate. Terms and conditions

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate. (…) Relocation

(7) The order may authorize or prohibit the relocation of the child. (…) Prohibition on removal of child

(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal. Parenting time —

schedule 16.2

(1) Parenting time may be allocated by way of a schedule. Day-to-day decisions

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(

a) has exclusive authority to make, during that time, day-to-day decisions affecting the child. Allocation of decision-making responsibility

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

Entitlement to information 16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws. [ 160 ] The Divorce Act further provides the following specific legislative considerations that must be considered in relocation cases: Notice 16.9

(1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention. (…) Exception

(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or may modify them, including where there is a risk of family violence. [ 161 ] I will also apply all the additional factors related to relocation set out in

section 16.92(1) (

a) to (

g) of the Divorce Act below. [ 162 ]

Section 16.93 of the Divorce Act governs the determination of the burden of proof in relocation cases: Burden of proof — person who intends to relocate child 16.93

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

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

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child. [163] Lastly, I refer to

section 16.95 of the Divorce Act, which provides that the Court may apportion costs relating to the exerciseof parenting time when a relocation is authorized: Costs relating to exercise of parenting time 16.95 If a court authorizes the relocation of a child of the marriage, it may provide for the apportionment of costs relating to the exerciseof parenting time by a person who is not relocating between that person and the person who is relocating the child. Jurisprudence on Best Interests and Relocation [164] Justice Petrie’s recently commented in

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