Campbell v Guignard, 2023 ABKB 217

Court of King’s Bench of Alberta Cour du Banc du Roi de l’Alberta Citation: Campbell v Guignard, 2023 ABKB 217 Campbell c Guignard, 2023 ABKB 217 Date: 20230414 Docket/Dossier: FL01 38391 Registry/Greffe: Calgary Between: Kyle Campbell Applicant (Cross-Respondent) - and - Maryse Guignard Respondent (Cross-Applicant) Entre : Kyle Campbell Demandeur (intimé reconventionnel) - et - Maryse Guignard Intimée (demanderesse reconventionnelle) _______________________________________________________

Decision of the Honourable Justice April Grosse/ Motifs de décision de l’honorable juge April Grosse _______________________________________________________ The French version follows the English. INTRODUCTION [1] This case is about Lia, who is now approximately two years old. Lia’s parents are Ms. Guignard and Mr. Campbell. Ms.Guignard and Mr. Campbell met in Fort McMurray in 2018 and began dating. They moved together to Calgary in the summer of 2020,where Lia was born in the spring of 2021. Ms. Guignard and Mr. Campbell ended their relationship at the end of July 2022.

Ms.Guignard is originally from Shippagan, New Brunswick. She has now decided to return to Shippagan. She takes the position that it is inLia’s best interest[1] to move with her. Accordingly, Ms. Guignard brings a mobility application permitting her to relocate Lia to NewBrunswick. [2] Mr. Campbell is an engineer in the energy sector. He is originally from British Columbia, but he has worked for Suncor orits affiliates for over 10 years, all in Calgary or Fort McMurray. He has no intention of relocating from Calgary. I believe it is fair to saythat in Mr.

Campbell’s view, the best-case scenario for Lia is for both of her parents to remain primarily resident in Calgary. However,he acknowledges that the law does not allow the Court to consider that option. In those circumstances, his position is that Lia shouldremain in Calgary in his day-to-day care. Mr. Campbell has filed an application for parenting in Calgary. [3] Litigation over mobility and parenting commenced very shortly after separation. The only parenting orders have been interimand without prejudice, pending the outcome of these proceedings.

PROCEDURAL CONTEXT [4] This matter originally came before me in Urgent Matters Chambers on October 28, 2022. At that time, the focus was onwhether Lia should be returned to Alberta pending a mobility or parenting hearing. The Court of King’s Bench of New Brunswick haddeclined jurisdiction but had issued an interim without prejudice parenting order. [5] I did not end up deciding the return issue because a cancellation permitted an oral hearing on a shorter timeframe than wouldgenerally be available. The parties agreed to a procedure for an oral hearing on November 7-9, 2022, and on interim parenting.

Theissues for the oral hearing were relocation, parenting and child support and the record included affidavits filed in the New Brunswickaction, affidavits filed in this action and oral evidence from each of the parties and from Ms. Guignard’s mother, Nancy Smith. Thehearing was held in both English and French, with an interpreter. [6] On December 1, 2022, I gave an oral decision, advising the parties that I had questions about their proposals for Lia’slinguistic development and the state of the record in that regard.

The matter was adjourned to allow them an opportunity to presentfurther evidence on that issue if they saw fit. They have each now filed a supplemental Affidavit and submissions. Mr. Campbell has alsotendered an expert report by Evelyn Wotherspoon. I acknowledge that the delay since December has come at a cost to the parties and toLia in a number of ways. I appreciate their efforts and the supplemental evidence has assisted the Court. [7] In the intervening period, parenting has been addressed by without prejudice agreements or without prejudice interim courtorders.

APPLICABLE LEGAL PRINCIPLES [8] The Court’s only consideration in these applications is Lia’s best interests. I must ensure the greatest possible protection ofLia’s physical, psychological and emotional safety and in so doing, I must consider all of Lia’s circumstances, including those items setout in section 18(2)(

b) of the Family Law Act, SA 2003, c F-4.5. The factors set out by the Supreme Court of Canada in Gordon vGoertz, (SCC), [1996] 2 SCR 27, and refined more recently in Barendregt v Grebliunas, 2022 SCC 22 are alsopertinent: NEW v MADM, 2022 ABCA 255 at paras 11-12. [9] The reality in most relocation cases is that the child’s relationship with at least one parent will be impacted.

The question is“whether it is in the child’s best interests to move notwithstanding the impact on their relationship with the other parent”: Barendregt atpara 132. [10] I asked the parties for their positions as to whether I was obliged to consider the parenting application and then the mobilityapplication. Csorba v Csorba, 2017 ABCA 190 is often cited for the proposition that where an initial parenting application is brought atthe same time as a mobility application, parenting must be decided first, and then mobility.

In this case, neither party asks that I make ahypothetical decision on parenting as if both parents were going to be in Calgary, and then go on to decide mobility. In fact, both take theview that I should not do that. Rather, the parties argue that I should simply decide in a holistic fashion what is in Lia’s best interest, inlight of the reality that one parent will be in New Brunswick and the other in Calgary. This approach is consistent with recent

jurisprudence: for example, see CR v PS , 2022 ABQB 410 at para 64 and Barendregt at para 112 . The Court must compare the scenario where Lia resides primarily in New Brunswick in Ms. Guignard’s care, versus the scenario where Lia resides primarily in Calgary in Mr. Campbell’s care. [ 11 ] I also asked the parties about the applicable burden of proof in this case.

Section 16.93 of the Divorce Act , RSC, 1985, c.3 (2 nd Supp .) now establishes a burden of proof for mobility applications in some circumstances. Ms. Guignard suggested that I could impose a burden of proof on Mr. Campbell to demonstrate that the relocation would not be in Lia’s best interest on the basis that Lia has historically spent substantially more time in her mother’s care. However, Ms.

Guignard did not push this point and her ultimate argument was that the decision would not turn on the burden of proof. [ 12 ] I decline to impose a burden of proof on one party over the other in the circumstances of this case.

First, there is some doubt in the jurisprudence as to whether the burdens of proof in the Divorce Act apply in Family Law Act mobility cases, even though it is otherwise clear that the mobility factors in the Divorce Act are relevant considerations: See CR v PS , 2022 ABQB 410 at paras 57 and 61 , which was cited with approval by the Court of Appeal in NEW v MADM , though not on the particular point of burdens of proof.

In any event, even if the Divorce Act provisions applied directly, they contemplate a particular burden of proof where the parties “substantially comply with an order, arbitral award or agreement” that either provides that a child spend substantially equal time in the care of each party or that a child of the marriage spend the vast majority of their time in the care of the party who intends to relocate the child. In this case, there is no order, arbitral award of agreement. Barendregt suggests that a burden of proof may arise from history of care: Barendregt at para 123 .

However, I am not satisfied that it would be appropriate to apply a particular burden of proof in this case, where the mobility issue arose almost immediately upon separation, and where the pre-separation share of parenting responsibilities is a fact in issue. THE EXPERT REPORT [ 13 ] Mr. Campbell tendered the expert report from Ms. Wotherspoon in response to the Court’s questions about the proposals for linguistic development. Ms. Wotherspoon holds a Master of Social Work degree and is a Registered Clinical Social Worker.

The report provides general information on child development, including language acquisition, rather than a specific opinion on Lia. Ms. Guignard points out that there is no opinion per se, but she did not object to the filing of the report. In fact, she relies on parts of it in her supplemental submissions. [ 14 ] Ms. Wotherspoon’s report was not accompanied by a statement as to the specific expertise for which qualification is sought. I understand this to be a product of the circumstances in which it was tendered. In light of Ms.

Wotherspoon’s credentials as set out in her CV, and there being no objection, I accept that Ms. Wotherspoon is qualified to give expert evidence in early childhood development and mental health of children. She has been previously qualified by courts on those topics. I also infer that Ms. Wotherspoon’s expertise in childhood development includes expertise in language acquisition and development. Nothing in Ms.

Wotherspoon’s CV or report suggests that she has particular training or expertise in bilingualism, dual language acquisition or second language acquisition but given the nature of her report, nothing turns on it, and it could be addressed as a matter of weight in any event. ASSESSMENT OF EVIDENCE AND RELEVANT CONSIDERATIONS [ 15 ] In AED v SRP , 2021 ABQB 567 , Justice Renke organized the relevant factors in assessing a child’s best interests in the context of a mobility application into three groups. The parties both adopted those groupings.

In light of this, I have used similar groupings, recognizing that they are for organizational purposes only, that some factors fit in more than one group, and that the ultimate analysis is wholistic and not formulaic. Where applicable, I have also added factors to Justice Renke’s groupings to reflect the intervening changes in the Divorce Act and the review of Gordon v Goertz in Barendregt .

Factors Focusing on the Child, Her History and Relationships [ 16 ] This group includes: • The child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development; • The history of care for the child; • The child’s cultural, linguistic, religious and spiritual upbringing and heritage; • The child’s views and preferences, to the extent that it is appropriate to ascertain them; • The nature, strength and stability of the relationship (

A) between the child and each person residing in the child’s household and any other significant person in the child’s life, and (

B) between the child and each person in respect of whom an order would apply; • Taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian; • The existing parenting and decision-making arrangement and relationship between the child and each parent, including the amount

of time spent by the child with each person and the level of involvement in the child’s life of each of those persons: Barendregt at para 154 ; • The “parenting time factor”: Bardendregt at para 135; • Disruption to the child of a change in parenting; • Disruption to the child consequent on removal from family, schools and the community the child has come to known; • The impact of the relocation on the child: Barendregt at para 154 ; and • The existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside: Barendregt at para 154 . [ 17 ] Lia was born in Calgary on March 29, 2021.

She was approximately 19 months old at the date of the oral hearing and is now 2 years old. She is highly reliant on her caregivers to protect her physical, psychological and emotional safety. Lia needs physical care, love, security, predictability and stability. The evidence does not suggest that she has any particular or special needs beyond those of an average child her age. Ms.

Wotherspoon identifies the “job” of a child of Lia’s age as “developing into a healthy productive citizen” with three parts: 1) learning to engage in satisfying relationships; 2) learning about the world through exploration and play; and 3) developing executive function skills, such as focus, constraining impulse and self-regulation. Ms. Wotherspoon’s report supports the shared view of the parties that Lia would benefit from the selection of a primary caregiver and a home base. [ 18 ] While the parties, and particularly Ms.

Guignard, travelled frequently to Shippagan with Lia since she was born, I am satisfied that prior to the parties’ separation, Lia’s habitual residence was Calgary. That said, the primary focus at Lia’s age is on relationships, not places: MacPhail v Karasek , 2006 ABCA 238 at para 39 , leave to appeal to SCC refused, 31629 (8 February 2007). I am not concerned about a connection to the City of Calgary itself or disruption as a result of being removed from institutions such as schools or activities. [ 19 ] There is no dispute that Lia has already developed a meaningful bond with each of her parents.

Each relationship is healthy and important. Unsurprisingly given Lia’s age, the record does not include evidence that would allow the Court to make particularized findings about the nature, strength or stability of the relationship between Lia and each parent independent of what can reasonably be inferred from the history of care. [ 20 ] While the parties agree that each has had a role in caring for Lia, the characterization of the history of care is contested. Ms. Guignard’s position is that in the totality of Lia’s life, she has been Lia’s primary caregiver. Mr.

Campbell argues that parenting has been equal and that neither party should be treated as having had a primary caregiver role. [ 21 ] I find that the evidence establishes the following facts on a balance of probabilities. [ 22 ] When Lia was born, the parties decided that for at least the near future, Mr. Campbell would continue working outside the home and Ms. Guignard would stay at home with Lia. Mr. Campbell took two weeks off work after Lia was born, and thereafter, he was involved with Lia’s care when he was not working. He was regularly involved in daily activities such as changing diapers and bathing.

After Lia started on solids, he was involved in feeding her. Mr. Campbell was physically present more often than he may otherwise have been because he was working from home during the pandemic. This allowed him to interact with her on breaks from meetings, at lunch or other such opportunities. Mr. Campbell attended medical appointments, though there were not many of those after Lia was born. He cared for Lia on his own when Ms. Guignard was out, including during the yoga instructor courses that she took regularly for 12 weeks in 2022. Even when Ms.

Guignard took Lia for periods of several weeks to see her family in New Brunswick, Mr. Campbell often went for as much of the time as his work obligations permitted. [ 23 ] I am satisfied that prior to separation, Mr. Campbell was an engaged father with material responsibility for Lia’s care. This was not a family where one parent was markedly uninvolved. Rather, Lia enjoyed two loving parents, each developing their own relationship with her in a way that made sense for their family. [ 24 ] That said, the only reasonable inference available from the evidence is that prior to separation, Ms.

Guignard was Lia’s primary caregiver. She was the one who was responsible for Lia during the 5 days per week that Mr. Campbell was working at his paid employment, whether from home or at the office. While working from home presented a nice opportunity for Mr. Campbell to see Lia from time to time during the day, it was Ms. Guignard who had primary care. On evenings and weekends, Mr. Campbell participated in Lia’s care, but unless Ms. Guignard was out, she was still significantly involved.

This was not a situation where one parent was on duty during business hours and then the other took over on all evenings and weekends. Lia did not take a bottle and Ms. Guignard nursed her for the first 9 months or so, including to put her back to sleep when she awoke in the night. [ 25 ] While Mr. Campbell accompanied Ms. Guignard and Lia to New Brunswick as often as he could, the fact is that Lia had been physically separated from him for periods of more than a week on a number of occasions. She had never been separated from Ms.

Guignard for more than a day prior to separation. [ 26 ] The assessment of caregiving responsibility is not purely quantitative. The evidence establishes that Ms. Guignard took the lead on matters such as planning for Lia’s care, researching development milestones, researching stimulation activities, establishing her diet, preparing meals and setting her routine. I appreciate Mr. Campbell’s position now to be that to the extent he was less involved in these activities, it was because Ms. Guignard left him out. However, the evidence does not establish on a balance of probabilities that at the time, Mr.

Campbell actively sought more responsibility and Ms. Guignard refused. [ 27 ] To be clear, characterizing Ms. Guignard as primary caregiver does not mean that Ms. Guignard was a better parent or a more important parent than Mr. Campbell prior to separation. Each played their own important role in Lia’s life.

[ 28 ] Since separation, each party has had responsibility for Lia’s care for periods of several weeks at a time and the division of time has been roughly equal. There is evidence of challenges during or following transitions, but Lia settles in with each parent. This is consistent with Lia having a bond with each parent and with each parent being able to meet her needs. I am mindful that a temporary parenting regime while the parties wait for a final court order does not establish a status quo: MacPhail at para 37 .

Further, the only parenting since separation that was not subject to a without prejudice agreement or court order was over a short period in the context of summer parenting while visiting the parties’ respective families.

It would not be a fair sample for establishing any status quo. [ 29 ] While the parenting since separation does not establish a new status quo, in all of the circumstances, including Lia’s very young age, the fact that these proceedings commenced shortly after separation, and the history of care since separation, I find that the views of both parties are entitled to “great respect” in terms of assessing Lia’s best interests; see Barendregt at paras 117-119 . I have not accorded greater weight to Ms.

Guignard’s views, notwithstanding her role as primary caregiver prior to separation. [ 30 ] Going forward, the parties agree that it is in Lia’s best interests to maintain and develop her relationship with both parents. There will be disruption to Lia in going significant periods without seeing one of her parents, no matter which one that is. Given the history of care, it may be reasonable to infer that the disruption would be greater in being separated from Ms. Guignard.

However, it is also reasonable to infer that the gap has likely narrowed to some extent in light of the fact that Lia has now experienced separation from her mother for several weeks at a time as a result of court orders post-separation. This is a practical reality distinct from the legal significance of that period in terms of creating a status quo. [ 31 ] With respect to Lia’s relationship with others, Lia does not have siblings and neither party lives with a new partner. Mr. Campbell’s parents live in British Columbia.

Accordingly, their involvement with Lia has been in the context of visits and that will continue to be the case in the foreseeable future, even if she remains in Calgary. The record demonstrates that Mr. Campbell has a number of friends and extended family members in Calgary, including those with young children. Ms. Guignard also has a grandfather and other extended family in Fort McMurray, Alberta. Having this network is a positive for Lia in Calgary, but none of the specific relationships are such that there would be a material negative impact on Lia if she moved away from them. [ 32 ] At the time of trial, Ms.

Guignard was residing with her mother, but she planned to move to her own home in Shippagan with Lia. Regardless of whether Ms. Guignard resides in her own property or with her mother, Ms. Smith would be a significant presence in Lia’s life if Lia were to move to New Brunswick. The evidence establishes that Ms. Guignard’s life in New Brunswick is very much entwined with that of her mother. They work together and Ms.

Guignard regularly relies on her mother, her grandmother and extended family for childcare. [ 33 ] The reasonable inference from the evidence is that Lia already has a well-established relationship with Ms. Guignard’s mother and other extended family in New Brunswick. These relationships are a positive for Lia in Shippagan. However, they are not such that I would be concerned about Lia’s physical, emotional or psychological security if she were to live in Calgary and only see Ms.

Smith or the other New Brunswick family members periodically. [ 34 ] With respect to Lia’s cultural, linguistic, religious and spiritual upbringing and heritage, sharing her Acadian and francophone culture with Lia is important to Ms. Guignard, but the key issue is language. Mr. Campbell is anglophone and does not speak French. Ms. Guignard is francophone. She understands and speaks English, but she remains more comfortable in French. Both parents would like Lia to be bilingual. [ 35 ] Given Lia’s age, there is limited evidence available with respect to her language development to date. Mr.

Campbell speaks only English to Lia. Prior to separation, Ms. Guignard spoke French to Lia for the most part. She testified that since separation, she continues to speak to Lia in French, but she has also engaged in regular reading and other activities with Lia in English to foster Lia’s development in both languages. Lia has started to say some words in both languages. There is no evidence of Lia having any particular gifts or challenges in respect of language acquisition. [ 36 ] Based on the evidence and arguments of the parties, bilingualism for Lia serves three purposes. First, bilingualism is a life skill.

It would be beneficial to Lia for future education and employment opportunities to be fluent in both French and English. Second, both parties recognize value in Lia sharing in the linguistic traditions of her parents and their respective families. Third, there is the very real need for Lia to be able to communicate effectively with each of her parents. [ 37 ] In my view, while each of these is important, the third is most pressing at this time.

Whatever benefits bilingualism may ultimately bring, it is not in Lia’s best interests for even a short-term language barrier to develop that impedes the maintenance and development of her bond with one of her parents. In this regard, it is a practical reality that if Lia does not communicate in English, it means that she is unable to communicate with Mr. Campbell at all, whereas Ms. Guignard is at least capable of communicating with Lia in English in the short term.

Factors Focusing on Each Parent, Respecting the Parent’s Ability and Willingness to Care For and Meet the Child’s Needs [ 38 ] In AED , Justice Renke grouped the following factors under this heading: • Any plans proposed for the child’s care and upbringing; • Any family violence; • The ability and willingness of each person to care and meet the needs of the child; • The ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship; and

• Any civil or criminal proceedings that are relevant to the safety or well-being of the child. [ 39 ] I would also include in this

section the reasons for the moving parent’s move to the extent they are relevant to the best interests of the child: Barendregt at para 130 . [ 40 ] There are no allegations of family violence in this case and no other proceedings that are relevant to Lia’s safety or well- being. [ 41 ] In their evidence, each party raised some criticisms about the other’s parenting. However, in their closing submissions, each acknowledged the other as a capable parent. This was fair, as the evidence to the contrary was tenuous.

I accept that each party is willing and able to meet Lia’s physical, emotional and psychological needs as they are now known to be. I am also satisfied that they have both put forward viable plans for Lia’s care. [ 42 ] Mr. Campbell completed his post-secondary education in engineering in or about 2013. He left British Columbia and has made his home in Alberta ever since, working for the same company in Fort McMurray and in Calgary. He has a career plan and has moved to new positions in the company with deliberation. He earns an annual salary in the range of $140,000-$170,000 and he also invests in real estate.

While anything can happen, the reasonable inference is that Mr. Campbell is independently secure and stable, which is a positive for Lia. [ 43 ] Mr. Campbell currently lives in a beltline condo, but he intends to move to a neighbourhood near an appropriate school for Lia if she remains in Calgary. Lia’s bedroom in the condo is set up as it was in the apartment shared by Mr. Campbell and Ms. Guignard when the family lived in together. [ 44 ] Mr. Campbell works full time, generally Monday to Friday.

He has some flexibility over his start and end times, and some weeks are heavier than others because his responsibilities are more task-based than hours-based. However, he generally works five full days per week, approximately eight hours per day. He can work two days per week from home, but he would not be able to take care of Lia during the day while working from home on any regular basis. Mr. Campbell would rely on daycare until Lia is old enough to attend preschool or school fulltime. [ 45 ] There is a daycare in Mr. Campbell’s office building, which is close to his current residence. At the time of Mr.

Campbell’s March 2023 Affidavit, he was waiting for a spot to open in that daycare. In the meantime, Lia is enrolled at another central location with the same company. The daycare has levels such that Lia could progress through to programming that gradually looks more like preschool. The daycare is in English. [ 46 ] Mr. Campbell’s evidence is that he would not anticipate needing childcare outside of his work

schedule and would be devoted to spending non-work time with Lia. No matter how devoted Mr. Campbell is to Lia, I am alive to the likelihood that he would need periodic childcare on evenings and weekends. The reasonable inference on the evidence is that this type of childcare would be provided by a babysitter or perhaps by friends on occasion. [ 47 ] Mr. Campbell did not detail any particular plans he has in respect of his own time with Lia such as activities, routines or parenting philosophies.

His evidence includes examples of past activities he has undertaken with Lia such as reading, going on walks, going to the beach or going to the zoo. [ 48 ] As set out above, Mr. Campbell has close friends and some extended family in Calgary, some of whom have young children. His parents live in British Columbia and visit regularly. [ 49 ] Ms. Guignard has not completed any post-secondary education. Prior to having Lia, she worked as a server. She has training as a yoga instructor but has not pursued that line of work.

At present, she is employed in a restaurant co-owned by her mother, her mother’s partner and a third party. She is gradually taking over management responsibilities from her mother and she also works shifts as a server. Ms. Guignard receives an annual salary of approximately $53,000, which is not tied to hours worked. Ms. Guignard’s evidence is that she can make ends meet for she and Lia in Shippagan on this salary, particularly with the other family supports available. [ 50 ] While her management duties require daily work, Ms.

Guignard often has flexibility in terms of which hours during the day she works, and the hours do not necessarily have to be consecutive. Ms. Guignard’s server shifts are often in the evening. Because of the flexibility of her work schedule, Ms. Guignard does not anticipate requiring full day non-parent childcare for Lia each day if Lia relocates to Shippagan. Her evidence is that her mother, grandmother, aunts and other extended family or close friends will provide childcare for Lia as needed. This arrangement was in place over the summer of 2022. I am alive to the possibility that Ms.

Guignard is not being realistic about how much she will have to work if she takes over completely as manager from her mother, or about how much childcare family and friends can actually provide on a permanent basis. [ 51 ] Both in her original evidence and her supplemental affidavit, Ms. Guignard has emphasized routine for Lia and the evidence establishes that she has created in the past and continues to create routines and plans for Lia in terms of sleep, meals, daily activities, and stimulation. Ms.

Guignard arranges playdates with friends who have young children and plans for Lia to frequently see extended family. The evidence as a whole clearly establishes that in Shippagan, Ms. Guignard is integrated into a large and close network of family and friends. They are an important part of her life, and they would be an important part of Lia’s life if she moved there. [ 52 ] Ms. Guignard is currently living with her mother, where Lia has a bedroom that she is familiar with. A house has been purchased for Ms. Guignard and Lia, but it is undergoing renovations. The house is being furnished with a suite so that Ms.

Guignard could have a tenant. [ 53 ] Mr. Campbell argues that the house purchase is part of a sham to make Ms. Guignard’s life in Shippagan look more stable than it actually is. The purchase happened very quickly after separation, just prior to the commencement of litigation in New Brunswick. Yet, there has not been a similar sense of urgency in having Ms. Guignard move in. Ultimately, Ms. Smith’s partner financed the

purchase of the home, but with no set terms for Ms. Guignard to pay him back. I understand Mr. Campbell’s suspicion, but the evidence does not establish on a balance of probabilities that the house purchase was a sham in the sense of not being real or an attempt to mislead, as opposed to a good faith effort by Ms. Guignard’s family to support her desire to return to New Brunswick. [ 54 ] In respect of Ms. Guignard’s ability to provide an appropriate home for Lia, the house purchase is not determinative. I am satisfied that with or without the house purchase, Ms.

Guignard and her family would ensure that Lia’s needs in terms of lodging and other necessities are met. [ 55 ] The house purchase and the evidence about Ms. Guignard’s employment reflect Ms. Guignard’s relative lack of independence and financial stability as compared to Mr. Campbell. Ms. Guignard herself has little information about how the house purchase happened or the financing; it appears that her mother handled most of that. On the employment front, Ms. Guignard went to New Brunswick for the summer months for a visit with a view to practising as a yoga teacher.

Then, suddenly, she was moving back there, and her mother was simultaneously ready to move towards retirement and hand off management of the business. Not only is Ms. Guignard reliant on her mother for the job, she has very little personal knowledge of the terms of her employment or how her salary is set. Her mother does her taxes, which is understandable, given that her mother has accounting training, but Ms. Guignard has almost no knowledge of what goes into them. Accordingly, at present, Ms. Guignard has a steady income, a house and a flexible work schedule. However, if something were to happen to Ms.

Guignard’s mother, or to her mother’s relationship with her partner, Ms. Guignard – and Lia if she were there – could be in a precarious position. [ 56 ] There is also uncertainty with respect to Ms. Guignard’s longer term plans. She testified that she may want to go back to school and study business, but any such plans are a few years off. There is no evidence that Ms. Guignard had always planned to take over her mother’s restaurant, or to live permanently in Shippagan itself. It is reasonable to infer that Ms.

Guignard’s current situation in terms of employment and living in Shippagan may be interim. [ 57 ] The Divorce Act now lists reasons for moving as an express factor to be considered in the mobility analysis. In Barendregt , the Supreme Court cautioned that this does not mean a court may cast judgment on a parent’s reasons for moving. A moving parent need not prove the move is justified: Barendregt at para 129 . However, the reasons for moving are to be considered to the extent that they are relevant to the best interests of the child: Barendregt at para 130 . [ 58 ] In this case, Ms.

Guignard’s reasons for moving are easy to understand. She had come to Calgary shortly before finding out she was pregnant, and in the middle of a global pandemic. She had few, if any, of her own friends in the city. She never worked outside the home in Calgary, and accordingly had no income and no career ties. Her lack of confidence in her English in a work setting did not assist in envisioning a future in Calgary. She has a strong network of support from family and friends in Shippagan and the cost of housing is lower there. Basically, following the breakdown of her relationship with Mr.

Campbell, if she was going to start over in a new home, with a new job, all while parenting a small child, she wanted to do so where she felt at home and with her mother and other supports close by. She also had a preference for non-parent childcare by family members rather than daycare, and she envisioned the latter being necessary in Calgary if both she and Mr. Campbell were working outside the home. [ 59 ] I am satisfied that Ms. Guignard did not decide to relocate to thwart Mr. Campbell’s relationship with Lia, nor to prioritize Lia’s relationship with Ms. Smith over Lia’s relationship with Mr. Campbell.

The decision to move was not made in bad faith. [ 60 ] Relating the reasons for moving to the best interests of Lia, there are certainly connections. For example, the extent of family support available in Shippagan is a positive for Lia. Whether this and other factors ultimately mean that it is in Lia’s best interests to move with Ms. Guignard is the difficult determination that the Court must make in this case. [ 61 ] With respect to Lia’s needs in terms of language acquisition and bilingualism, Mr.

Campbell presented two options for enrolling Lia in French-language or bilingual preschool starting in the fall term of 2024. He does not propose French-language daycare in the intervening period, and Ms. Guignard’s uncontested evidence is that there are no French-language daycare spots available in Calgary at this time. Following preschool, Mr. Campbell proposes to enroll Lia in a public French immersion school or in the private Lycée International. While Mr.

Campbell does not know French, his evidence is that he is willing to undertake some French studies so as to be able to assist Lia to the greatest extent possible. All of this would be in addition to Lia’s French-language exposure through regular virtual and in-person parenting time with Ms. Guignard. [ 62 ] Mr. Campbell’s supplemental evidence provides the name of a proposed bilingual family doctor and a bilingual speech- language pathologist in Calgary for implementation of Ms. Wotherspoon’s recommendations regarding engaging professionals of this nature. [ 63 ] Ms.

Guignard is not aware of any English-language or bilingual daycares in Shippagan or nearby communities. Her proposal is that she will continue communicating with Lia in both English and French and that she will also regularly expose Lia to family and friends who speak English. In her supplemental evidence, Ms. Guignard proposed a detailed

schedule of daily periods and activities that would be solely in English. She would ensure that when she was not available, family members or friends providing care during those periods would be willing and able to undertake them in English. Ms. Guignard provided examples of extra-curricular activities available in the region in English and if Lia were to relocate to Shippagan, it would be important for Ms. Guignard to actively seek out all such opportunities. However, most of the examples provided appear to be for children older than Lia and some take place over an hour away from Shippagan.

Accordingly, I do not rely on them in assessing the existing plan. [ 64 ] Over the longer term, the evidence is that there is no English-language or bilingual elementary or secondary school in Shippagan. I used publicly available information to satisfy myself that no obvious option had been overlooked. There appears to be an anglophone school in Janeville, but neither parent has proposed it, Janeville is over one hour by car from Shippagan, and I am not in a position to determine whether Lia would meet the admissions criteria.

Accordingly, I proceed on the basis that the primary language of instruction for any formal education in Shippagan would be French. The curriculum would include English as a second language. [ 65 ] Ms. Guignard’s position is that given the prevalence of English in business and popular culture across North America, and the bilingual nature of New Brunswick, Lia is likely to be exposed to English in Shippagan in informal ways, which would contribute to her

linguistic development. [ 66 ] In assessing the parties’ proposals in terms of language acquisition, I accept that each has a good faith intention to assist Lia in learning both English and French to the extent possible. Ms. Guignard’s arguments raise some questions about the sincerity of Mr. Campbell’s intentions given that he has not yet commenced any French language instruction and his evidence does not demonstrate an awareness of the differences between concepts such as francophone education and immersion education. On the evidence, I accept that Ms.

Guignard already has a deeper personal appreciation for some of the benefits, challenges and nuances of acquiring two languages, given her own experience. However, I do not doubt the sincerity of Mr.

Campbell’s intentions or his willingness to follow through on what he has proposed. [ 67 ] Further, in the absence of evidence or argument to the contrary, I start from the proposition that even though Lia will not reside in physical proximity to both an anglophone parent and a francophone parent, it is realistic to expect that she can learn to meaningfully communicate with each in their first language in the near term. Each party takes the position that acquiring both languages is possible at an early age, and this is supported by the report of Ms. Wotherspoon.

This is an important threshold in this case given my concern about the risk of a language barrier interfering with Lia’s ability to maintain a relationship with one parent or the other, and particularly with Mr. Campbell, given that he is unilingual. [ 68 ] In considering how each party, in their respective chosen locations, could facilitate Lia’s bilingualism, it must be recognized that even with a strong plan and good faith effort, nobody can promise that Lia will become perfectly bilingual. This would have been the case even if Mr. Campbell and Ms.

Guignard had stayed together, each using their own first language with Lia in their home. There are a variety of factors that can affect a child’s language acquisition. It must also be recognized that the term “bilingual” can mean different things to different people. [ 69 ] Mr. Campbell is correct that Calgary presents opportunities for formal language education that Shippagan does not. In Calgary, Lia would live with Mr. Campbell in English, but her primary language of instruction at school would be French. This type of formal education is consistent with Ms.

Wotherspoon’s recommendation for immersion schooling. I note that this was by reference to second language acquisition, not necessarily to dual acquisition of two mother tongues. Ms. Guignard’s concern is that Lia’s acquisition of French at a school in Calgary would not equate to learning French at home in a French-speaking environment. She is no doubt correct. However, in the absence of evidence to the contrary, I accept that Lia is likely to acquire at least the ability to communicate with Ms. Guignard in French through the formal instruction proposed by Mr.

Campbell. [ 70 ] Unfortunately, it appears that Lia could not commence French-language instruction in Calgary for over a year. Whether Lia starts such a program now or in September 2024 may not materially impact her ultimate mastery of French, but it is a relevant consideration for her ability to communicate with Ms. Guignard in French in the meantime. [ 71 ] With respect to Lia learning English in Shippagan, I accept that the detailed routine Ms. Guignard has proposed is not just for the Court’s benefit and that she intends to follow it. It is consistent with the evidence that Ms.

Guignard prepared routines for Lia prior to separation. I do not have expert evidence as to whether the particular timeframes and activities proposed by Ms. Guignard are optimal. However, on its face, the plan meets most of the criteria set out by Ms. Wotherspoon for a second language acquisition plan. For example, it includes daily exposure, the opportunity to practise with a responsive partner and not just listen, and use of English in a variety of daily tasks and activities.

Intuitively, the proposed use of English each day in the context of a meal and the bath would facilitate a smooth transition for Lia’s parenting time with Mr. Campbell. Ms. Guignard’s proposal suggests an opportunity for a variety of conversation partners through the introduction of family members and friends, though I do not put significant weight on this aspect because it is not clear how often that would occur. I note that Ms.

Wotherspoon’s caution about relying on the diligence of one parent to expose the child to the second language was focused on the lack of independent verification and the potential for lack of follow through in spite of good intentions. Her report does not suggest that even if followed, a plan for one parent to convey both languages to a child could not work. [ 72 ] At this time, I do not put any particular weight on the potential for Lia to be exposed to English informally in Shippagan.

I do not doubt that even though Shippagan is French speaking, if Lia lived there, she would likely be exposed to English through popular culture, media, travel within or outside of New Brunswick or bilingual people in the community. It is fair to say that living with an anglophone parent in Calgary, Lia is unlikely to have any regular exposure to French outside of formal education. However, the evidence does not establish that the informal exposure in Shippagan is likely to have a material impact on Lia’s acquisition of English in the foreseeable future. [ 73 ] One potential concern with Ms.

Guignard’s proposal is that English is not Ms. Guignard’s first language, nor is it the first language of any of the family members or friends she proposes to be involved in Lia’s care. Ms. Wotherspoon’s report does not differentiate between the effectiveness of native-speakers and non-native speakers as conversation partners for a child, but it is fair to presume that there could be a difference . Ms. Guignard herself has identified that there are gaps in her English and that she remains more comfortable in French. This may in turn limit Lia’s acquisition.

That said, based on the record as a whole, I accept that Ms. Guignard has sufficient proficiency in English to be a significant contributor to Lia learning to communicate in English. She lived in predominantly English-speaking areas in Alberta for almost five years, she worked in the service industry in Alberta in English, and she communicated exclusively in English with Mr. Campbell during their relationship. [ 74 ] Regardless of the potential effectiveness of Ms. Guignard’s proposal, I share Ms.

Wotherspoon’s caution with respect to sole reliance on the diligence of either parent to teach or otherwise expose the child to both languages. Even with the best of intentions, it is easy for the routine to slide when the parent is busy, or when it becomes frustrating for either the parent or the child. Relying on Ms. Guignard to develop Lia’s English also presents a risk of unnecessary ongoing conflict in the family. If Mr.

Campbell felt that Lia was not as advanced in English as she should be, or he were having difficulty communicating with her, there is a reasonable concern that he would attribute this to a lack of effort on Ms. Guignard’s part or a failure of her plan, regardless of whether that were actually the case. Some form of objective assessment of Lia’s linguistic development would be in the best interests of all. Ms. Guignard did not provide supplemental evidence regarding Ms.

Wotherspoon’s recommendations relating to engaging bilingual professionals to assist and there is no evidence suggesting that a bilingual pediatrician or speech pathologist is available in Shippagan.

[ 75 ] While Ms. Guignard’s proposal for English language acquisition in Shippagan is not ideal, the evidence available supports an inference that if the proposal were implemented, Lia is likely to acquire at least the ability to communicate with Mr. Campbell in English. The plan would obviously have to be updated as Lia gets older to reflect her new

schedule and routines. [ 76 ] I note that once Lia is older, there is potential for her to improve her language skills in either language in a variety of ways, including long summer stays with the parent who has not had day-to-day care or at a certain point, even living with the other parent for a school semester, akin to an exchange. [ 77 ] Beyond language, living in Shippagan would undoubtedly enhance Lia’s connection to Ms. Guignard’s Acadian culture. However, I am also satisfied that regardless of where Lia lives day to day, Ms.

Guignard would have sufficient time with her, including time in New Brunswick, to share her culture in a meaningful way. [ 78 ] As part of considering the ability and willingness of each parent to care for and meet Lia’s needs, it is fair to consider their relative abilities to do so even if she lives elsewhere: MG v SH , 2022 ABQB 533 at paras 66-67 . [ 79 ] The terms of Mr. Campbell’s employment limit how often he could travel to New Brunswick to spend time with Lia if she moved there. He is not permitted to work remotely more than two days per week.

He is entitled to three vacation weeks and ten flex days per year, but the flex days cannot be used consecutively to create extra weeks of vacation. Accordingly, other than his vacation weeks, he would have to rely on combinations of weekends, statutory holidays, flex days and remote workdays to having parenting time with Lia in New Brunswick. There are limited flights between Calgary and the Shippagan region, and then a further drive between the airport and Shippagan, meaning that significant time is lost in travel.

There are also limited accommodation options in Shippagan. [ 80 ] There are also challenges with having Lia come stay with Mr. Campbell in Calgary for his parenting time. Aside from the rigours of travel for Lia, Mr. Campbell would require childcare for most weekdays. His father is retired and his stepmother works five days per month, and both come to Calgary regularly. They might be able to help if planned in advance. Otherwise, Mr.

Campbell would require third party care, which is not always available on an ad hoc basis and would leave Lia with an unfamiliar caregiver when she was already away from her most familiar surroundings. [ 81 ] Ms. Guignard has more flexibility in her work schedule. I accept that there are always tasks that need to be done, but her mother confirmed that some of them can be done remotely (her mother often does some work on vacation). Further, Ms. Guignard is employed by her mother. This does not mean that she can simply leave when she wishes.

However, given the flexibility that seems to have been present with respect to transitioning Ms. Guignard into a management role without detailed terms, it is reasonable to conclude that Ms. Smith and the restaurant could offer sufficient scheduling flexibility to allow Ms. Guignard to travel to Calgary for meaningful periods to have parenting time with Lia. There are many accommodation options for Ms. Guignard for parenting time in Calgary. Further, regarding parenting time that would be exercised in New Brunswick, because Ms. Smith and others in Ms.

Guignard’s extended family are available for childcare as needed, and Lia is already comfortable with them, Lia could attend in Shippagan for parenting time even if Ms. Guignard were working during that time. Factors Focusing on the Relationship of the Parents, Respecting their Ability and Willingness to Promote a Meaningful Relationship with the Other Parent [ 82 ] The final set of factors grouped in AED v SRP are those focusing on the relationship of the parents and their ability and willingness to promote a meaningful relationship with the other parent.

The following factors were either listed by Justice Renke or arise out of the reformulation in Barendregt : • Any plans proposed for the child’s care and upbringing; • Any family violence; • The ability and willingness of each person to communicate and cooperate on issues affecting the child; • Any civil or criminal proceedings that are relevant to the safety or well-being of the child; • The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses: Barendregt at para 154 ; and • Whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award or agreement, and the likelihood of future compliance: Barendregt at para 154 . [ 83 ] Both parties testified as to their desire for Lia to maintain a relationship with the other parent and their willingness to facilitate that relationship.

I accept the sincerity of their intentions. However, I must still consider what the evidence tells me about what it means to each parent to facilitate a meaningful relationship, because that could mean different things to different people. Also, I must consider their respective ability to carry through on their intentions, and whether their proposals are reasonable. [ 84 ] If Lia were to remain in Calgary, Mr. Campbell’s proposal is that Lia and Ms. Guignard would have Facetime calls almost daily. He indicates that Ms. Guignard could have as much parenting time in Calgary as she wishes.

As a default schedule, he proposes parenting time for Ms. Guignard in Calgary for one week per month (in months where there was not otherwise a long weekend or holiday parenting time). He would reserve child support to go towards Ms. Guignard’s costs. During the Calgary parenting time, Ms. Guignard would have parenting time in the day while he was working and then Lia would return to sleep at his home to minimize disruption. With respect to parenting time in New Brunswick, Mr.

Campbell’s updated proposal is that he would drop Lia off for one month in the summer each year and for a week every second year on Lia’s birthday, and such other times as the parties may agree. Mr. Campbell

proposes that the parties alternate holiday parenting time over Christmas and New Year’s Day, with each parent having the full period every second year. [ 85 ] For her part, Ms. Guignard proposes that if Lia were to reside primarily in Shippagan, she would be willing to facilitate whatever Mr. Campbell could manage for parenting time there. She had given some thought as to how they could maximize his parenting time in New Brunswick by stringing together statutory holidays, holiday or flex days, and remote work as permitted. She proposed that her family could provide Mr.

Campbell with accommodation and a vehicle for parenting time with Lia in New Brunswick. Given the limitations on Mr. Campbell’s ability to be away from Calgary, she would be prepared to travel with Lia to Calgary to facilitate parenting time in Calgary. She suggested in her evidence two-week blocks twice per year though she would be open to more. She did not address who would care for Lia while Mr. Campbell was working during those blocks. Ms. Guignard proposes daily Facetime calls with Mr. Campbell. When Mr. Campbell’s counsel proposed summer parenting time of three weeks, Ms.

Guignard agreed, though she indicated that she was under the impression he could not take all three weeks of vacation in a row. [ 86 ] Neither party suggests that the other’s proposal is unreasonable given what they have to work with. Ms. Guignard’s evidence is that even with the flexibility of her work schedule, she is unlikely to be in a position to spend a week per month in Calgary, and she would like to have as much of her parenting time in New Brunswick as possible. Mr. Campbell is concerned about the incompatibility of his work

schedule with trips to New Brunswick, and he is also concerned about the lack of places to stay in Shippagan. The Court may make modifications to either proposal to try to address these or other concerns to the extent possible. Overall, each proposal provides a reasonable starting point for meaningful parenting time for the other parent. [ 87 ] One of the arguments that Mr. Campbell presses most forcefully in these applications is that Ms. Guignard has a history of unilaterally deciding what is in Lia’s best interests and treating him as a secondary parent.

He says she has restricted his time with Lia and will continue to do so except as specifically ordered by the Court. Mr. Campbell’s position is that he is better placed than Ms. Guignard to be a collaborative primary caregiver who will actively foster a relationship between Lia and the other parent. [ 88 ] There is no doubt that Ms. Guignard sees herself as Lia’s primary caregiver. She has never denied this. It is a key element of her position in this litigation. I have found as fact that prior to separation, Ms. Guignard was Lia’s primary caregiver.

There is no legal presumption of 50/50 parenting following separation. Accordingly, Ms. Guignard taking steps post-separation that were consistent with her pre-separation role as primary caregiver, such as advocating to limit the duration of periods that Lia would be separated from her, does not on its own lead to a negative inference as to her willingness or ability to facilitate a meaningful relationship between Mr. Campbell and Lia. In her report, Ms.

Wotherspoon states that she would not support a parenting plan that involved more than one-week separations from the primary caregiver every six weeks before age 3, even if the child had strong relationships with both parents. If an expert would see separation from the primary caregiver for more than a week in six as not in the child’s best interests, all while recognizing strong relationships with both parents, then it is unfair to equate Ms. Guignard’s reluctance to agree to a longer separation with a desire to restrict Mr.

Campbell’s parenting time, as opposed to a good faith concern about the effect it would have on Lia. In fact, in one of her text messages regarding the length of the Kelowna trip, Ms. Guignard made that very point. [ 89 ] At the oral hearing, Mr. Campbell’s counsel put some emphasis on Ms. Guignard using the words “my child” or “my daughter.” Words matter, but I would not accord much weight to this on its own. It is quite common to hear parents in a variety of family situations refer to a child as “my child” depending on context and their manner of speaking. I note that during his evidence, Mr.

Campbell did the same thing at least twice, usually correcting himself. [ 90 ] Of more concern to the Court is evidence of Ms. Guignard displaying an attitude that decisions with respect to Lia are ultimately hers to make or minimizing the place of Mr. Campbell or his family in Lia’s life. In her Affidavit sworn October 7, 2022, in the New Brunswick proceedings, Ms. Guignard averred that [Translation] “most of the important events in Lia's life took place in New Brunswick because this is where we have all our family and friends.” Mr. Campbell does not have friends or family in New Brunswick.

Accordingly, while it is only one paragraph in an affidavit, it supports Mr. Campbell’s concern that Ms. Guignard sees her own friends and family as more important in Lia’s life than his. At paragraph 29 of that same Affidavit, Ms. Guignard used the verb [Translation] “let [her]” to describe agreeing to Lia going to Kelowna as a sign of good faith. Again, her reluctance to have Lia separated from her is understandable and I am mindful of putting undue weight on the choice of one verb in an affidavit. However, the attitude that it is up to her to decide whether to let Lia go with Mr.

Campbell raises a concern. [ 91 ] The most glaring example giving rise to questions about Ms. Guignard’s attitude is her conduct in and around September 13, 2022, when she took Lia to New Brunswick without Mr. Campbell’s consent or knowledge. There is no real dispute about the following facts with respect to that incident: • Lia was in Mr. Campbell’s care starting August 29, 2022 for a trip to Kelowna to visit his family; • Ms. Guignard flew to Calgary on September 11, 2022 with Ms. Smith; • Ms. Guignard and Mr.

Campbell discussed future parenting arrangements for Lia after her arrival on September 11 and after his work on September 12; • When the discussions did not lead to an agreement for her to move Lia to New Brunswick, Ms. Guignard took matters into her own hands; • She led Mr. Campbell to believe that they would continue discussions on September 13, 2022 when he came home from work. However, Ms. Guignard and her mother obtained airline tickets and departed Calgary for New Brunswick early on September 13 with Lia; • Ms. Guignard advised Mr.

Campbell of her departure by text on September 13 after he confirmed that he was off work and on his way home to see her and Lia; and • Unbeknownst to Mr. Campbell at the time, Ms. Guignard had already commenced parenting proceedings in New Brunswick on

September 9 before she left. She did not inform him of those proceedings until he demanded Lia’s return and indicated that he had retained counsel. [ 92 ] I accept that Ms. Guignard did not attend in Calgary with a plan to take Lia without consent. I accept her evidence that she did not really know where the discussions about parenting would lead. I am satisfied that it was her hope an agreement could be reached. In observing her oral evidence, I found Ms. Guignard to be forthright, even on points like this, which could obviously hurt her case. She answered the questions as put to her.

Her evidence on this point, and generally, was consistent with objective evidence such as text messages or documents and I accept it as credible and reliable. [ 93 ] However, Ms. Guignard’s reaction to the challenging situation raises fair questions about her willingness to engage in open and honest communication with Mr. Campbell, and to solve problems with him in a collaborative way. There are probably going to be many things they disagree on over the course of Lia’s life. If Ms.

Guignard’s response is likely to involve taking deceptive unilateral action, this would weigh against Lia moving to Shippagan with her. [ 94 ] Further, Ms. Guignard’s explanation for why it was best for her to leave Calgary with Lia reflects some inability to see things from Mr. Campbell’s perspective and to objectively, and fairly assess the challenge facing the parties. In her affidavit evidence on this point, she was critical of Mr.

Campbell for not having her stay at his new condo, questioned him having his step-mother there, and she said “I could not stay in a hotel with a one-year old child for whom I was the primary parent” [Translation] Ms. Guignard seemed to think that Mr. Campbell was obliged to either give up his home for her, or to at least allow her to stay there with him, in circumstances where she had broken up with him less than two months earlier, where he had told her his health and work had suffered as a result of the break-up, and where she proposed to move Lia across the country.

She apparently felt it was appropriate to bring her mother with her, but she did not see the need for Mr. Campbell to have the support of his stepmother. The hotel may not have been ideal, but many parents stay in worse situations with children that are Lia’s age for much longer than a few days and they make it work. They could go outside, and they had the use of Mr. Campbell’s home even if they were not sleeping there. Moreover, Mr. Campbell had offered to rent an AirBnb with more space and a kitchen, but Ms. Guignard did not accept. With respect, Ms.

Guignard’s explanation sounds selfish and does not reflect insight into the enormous impact that her desire to move Lia would have on Mr. Campbell. In turn, this raises a question as to whether she truly appreciates the importance of Mr. Campbell’s relationship with Lia. [ 95 ] On the other hand, Ms. Guignard’s conduct in and around the September 13, 2022 incident must be considered in context, and by particular reference to Mr. Campbell’s text message of September 7, 2022 and the communications about parenting for Lia that had taken place in August 2022. Both of these raise disputed questions of fact. [ 96 ] Ms.

Guignard’s evidence is that when Mr. Campbell came to New Brunswick in mid-August 2022 to see Lia, he agreed to Lia moving to New Brunswick. He would come to New Brunswick and spend time with Lia approximately once per month if feasible and she would take Lia to Alberta from time to time. There was some specific discussion about the potential for a visit in October. In the meantime, they planned for Mr. Campbell to pick Lia up in New Brunswick at the end of August for a trip to Kelowna to see his family, and then return her to New Brunswick. The day before the planned return from Kelowna, Mr.

Campbell informed Ms. Guignard by text that he would not be returning Lia to New Brunswick and that Lia would remain in Calgary until matters were resolved. [ 97 ] Mr. Campbell’s evidence, particularly in his later affidavits and at the oral hearing, was that both pre- and post-separation, the general plan was for Ms. Guignard and Lia to return to Calgary in September. At that time, they would discuss future parenting for Lia. He says that Ms. Guignard did not advise him of any intention to relocate herself or Lia to New Brunswick until September 13, 2022. Mr.

Campbell maintains that there was never a plan for him to return Lia to New Brunswick after the Kelowna trip and that he took her to Calgary as he had always intended. [ 98 ] With specific respect to the immediate plan following the Kelowna trip, the evidence as a whole strongly supports Ms. Guignard’s version of events. Mr. Campbell’s own evidence is not entirely consistent and his denial of any plan to return Lia to New Brunswick after the Kelowna trip is inconsistent with text messages from the relevant period. For example, after Mr. Campbell had advised Ms.

Guignard that he was booked to depart Kelowna the morning of September 8, she raised the possibility of her coming to “pick Lia up in Calgary”. In response, Mr. Campbell said that he would just need to change his return. Ms. Guignard’s message had not referenced any particular date for her trip to Calgary, so any change of return was not a change of date. In a subsequent message, Ms. Guignard asked whether he had cancelled his flight back yet, as she had come to realize that it would be very expensive for her to fly to Calgary. Mr.

Campbell said he had not yet cancelled and would leave the flight as is for the time being. These exchanges make more sense if New Brunswick was the original destination. [ 99 ] On September 6, Ms. Guignard began asking Mr. Campbell what time he and Lia would be arriving in New Brunswick. He avoided answering through September 6 and 7, even though it was clear that she believed they were arriving on the 8 th and needed to make plans to meet them. [ 100 ] On the evening of September 7, Mr. Campbell texted Ms. Guignard. He said that he had thought long and hard.

There was never a plan for Lia to move to New Brunswick and the plan both pre-and post-separation was to come back to Calgary in September. He indicated that until they reached a solution, he was not comfortable with Lia being in New Brunswick. Mr. Campbell then stated that he and Lia would be heading to Calgary on the weekend. In his Affidavit sworn October 11, 2022 in the New Brunswick proceedings, Mr. Campbell explained that he panicked when he received Ms. Guignard’s text on September 6 and realized that she thought he was coming to New Brunswick. With respect, I have difficulty accepting this explanation.

Mr. Campbell’s September 7 message reads as an announcement of a change of plans, not as an explanation that there was a misunderstanding. Further, it is unlikely that an honest misunderstanding would lead to panic or a delayed response. [ 101 ] Mr. Campbell’s

summary of the September 7 text message in his affidavit sworn September 15, 2022 (filed September 16, 2022) also reads as though there had been a planned flight to New Brunswick. At paragraph 14, he states: “I let Maryse know on September 7, 2022 that I would be returning to Calgary with Lia on the weekend of September 10 th to 11 th , 2022 and that I would not be flying back to New Brunswick with Lia ….” [emphasis added].

[ 102 ] There are other examples of inconsistencies, but the bottom line is that on the record before me, I am satisfied on a balance of probabilities that when Mr. Campbell left for Kelowna with Lia, the parties had agreed that he would return Lia to New Brunswick at the end of the trip. Even if that were not the case, it was reasonable for Ms. Guignard to believe from the text messages that there was such an agreement. [ 103 ] With respect to the status of broader discussions about residence and parenting for Lia before Ms.

Guignard’s attendance in Calgary between September 11-13, I am satisfied on a balance of probabilities that at a minimum, there had been discussions in August about Lia remaining in New Brunswick with Ms. Guignard past September and that Mr. Campbell had not foreclosed this potential prior to his text of September 7. I do not accept Mr. Campbell’s evidence that the potential for Ms. Guignard and Lia to relocate to New Brunswick was never raised until September 13. His own text message of September 7 states, “At no point in time was the plan for Lia to move to NB”. It is difficult to understand why Mr.

Campbell would make this statement if the prospect of even Ms. Guignard moving had never been raised. Similarly, there are text messages referring to at least the potential for him to stay in New Brunswick for a period in October. I do not accept Mr. Campbell’s explanation that these messages were in the context of him being open to transporting Lia for a visit in New Brunswick. If Ms. Guignard and Lia were living in Alberta, and according to Mr. Campbell, nobody had ever suggested otherwise at the time of these texts, it would be unusual for Mr. Campbell to take Lia to visit Ms.

Guignard’s family in New Brunswick. All in all, Mr. Campbell’s evidence regarding the events of August and September is not reliable without corroboration. [ 104 ] Nothing turns on whether Mr. Campbell actually agreed or acquiesced to Lia’s relocation during the August discussions, and then had a change of heart during the Kelowna trip, or whether the discussions were sufficiently imprecise to allow for differing

interpretations as to what had actually been agreed. The relevant point is that following the August discussions, Ms. Guignard had a good faith belief that Mr. Campbell was at least open to Lia remaining in New Brunswick past September 2022 and that he would return Lia to New Brunswick after the trip to Kelowna. On September 7, Mr. Campbell unilaterally changed the plan. Ms. Guignard’s decisions in the days following September 7, including her departure with Lia on September 13, must be viewed in this context.

Context does not excuse what she did, but it is relevant in considering the degree to which the September 13 incident is predictive of future behaviour. [ 105 ] There is no evidence of Ms. Guignard failing to comply with court orders since legal proceedings began. [ 106 ] As an overall assessment on this point, I find that Ms. Guignard has had a tendency to see Mr. Campbell as a secondary parent for Lia, and she has not always shown insight into the impact that moving Lia to New Brunswick would have on him or on Lia’s relationship with him.

However, parenting post-separation is an adjustment, and I am satisfied that Ms. Guignard is genuinely willing and able to adapt and to facilitate a meaningful relationship between Lia and Mr. Campbell. Prior to Mr. Campbell’s September 7 text, she had already facilitated two sessions of parenting time in the month since separation and had suggested a third. I am satisfied that what Mr. Campbell has interpreted as her refusing or limiting his parenting time was actually a good faith and reasonable concern about the impact on Lia of longer periods of separation from Ms. Guignard given the history of care.

I accept that the September 13 incident was a poor decision in response to a particular set of circumstances brought on by Mr. Campbell’s September 7 text and that it is not indicative of a lack of willingness or ability to collaborate, or to abide by court orders or agreements in the future. Ms. Guignard’s proposed parenting plan, and her responses to questions about the plan, indicate a willingness to be reasonably flexible in facilitating parenting time for Mr. Campbell both in New Brunswick and Calgary, and to make decisions with him. [ 107 ] With respect to Mr. Campbell, Ms. Guignard raised concerns that Mr.

Campbell was not as engaged as she wanted with Lia prior to separation and that she resorted to sending him emails about it. However, she did not raise any particular concerns going forward about him communicating or facilitating parenting time if Lia remained in Calgary with him. I accept that Mr. Campbell’s unilateral decision in respect of the return from Kelowna was also a product of turmoil and is not reflective of how he would work with Ms. Guignard if Lia remained in his primary care in Calgary. Mr.

Campbell requires good organization and communication skills for his professional work, and I expect those would translate to the parenting context. He demonstrated flexibility during the hearing in agreeing that if Lia remained in Calgary, it would make sense for Ms. Guignard to choose a French-language school program. [ 108 ] The record demonstrates that in August, shortly after separation, the parties were communicating in a respectful manner by text about Lia and arranging parenting time.

It is unfortunate that when issues arose in September, they each turned to unilateral action, which led quickly to litigation. For Lia’s sake, they must try to find a way back to a more collaborative approach. Both advised the Court that they believe they can do so once the Court decides these applications and I accept their good faith. Conclusion [ 109 ] The above assessment identifies factors that weigh both in favour of, and against, Lia’s relocation. [ 110 ] The main factors that weigh in favour of Lia remaining in Calgary with Mr.

Campbell are the mitigation of risk that a language barrier develops between Lia and one parent, both because of the eventual availability of formalized French programs in Calgary and because Ms. Guignard is able to communicate with Lia in the language spoken in Mr. Campbell’s home; Mr. Campbell’s greater stability from a personal, career and financial perspective; Ms. Guignard’s relative flexibility to travel for parenting time compared to that of Mr.

Campbell and the wider selection of accommodation options in Calgary; and the apparent greater availability of local professionals to assist the parties with assessing and meeting Lia’s linguistic needs. [ 111 ] The main factors that weigh in favour of Lia relocating to Shippagan with Ms. Guignard are Ms. Guignard’s more flexible work

schedule in terms of not requiring full time child care by a non-parent each day and being able to arrange work around Lia’s needs; the opportunity for Lia to be part of a local family network, including grandparents, that is large, close and active; the support available to Ms. Guignard and Lia from that local network; and Ms. Guignard’s more extensive history of care for Lia, including her experience in setting routines and planning for Lia’s development. [ 112 ] I find that the factors weighing in favour of the relocation outweigh those against or those in favour of her remaining in Calgary. Items such as Ms.

Guignard’s relative flexibility to arrange her work around Lia’s needs and the availability of significant local family support and connection have a more direct contribution to Lia’s physical, psychological and emotional well-being than factors

such as the availability of professional advisors or Mr. Campbell’s relative stability. Even with the limits on his ability to travel to NewBrunswick, I am satisfied that meaningful parenting time for Mr. Campbell is feasible. My biggest concern in granting the application forrelocation is the risk that a language barrier develops between Mr. Campbell and Lia. However, between time with Mr.

Campbell, Ms.Guignard’s commitment and diligence, advice from professionals and ongoing monitoring with a view to making changes, if necessary, Iam satisfied on a balance of probabilities that the parties can prevent a destructive language barrier. Using the language of the SupremeCourt of Canada in Barendregt, I find that the move to Shippagan is in Lia’s best interests, notwithstanding the impact the move willhave on her relationship with Mr. Campbell: Barendregt at para 132. [113] Before imposing detailed terms regarding Mr.

Campbell’s parenting time, monitoring linguistic development, or child support, Iwould like to give counsel and the parties an opportunity to digest this decision and to discuss such matters. With the issue of mobilitydecided, they may well agree on how much detail they want in an order, and on other points. The Court retains jurisdiction to set theterms of parenting, child support and costs.

If the parties have not resolved the remaining issues in a form of order within three weeks oftoday’s decision, they shall write to my office at that time with a list of outstanding issues on which they seek direction. *** INTRODUCTION [1] La présente affaire concerne Lia qui a maintenant environ 2 ans. Les parents de Lia sont Mme Guignard et M. Campbell.Mme Guignard et M. Campbell se sont rencontrés à Fort McMurray en 2018 et ont commencé à se fréquenter. Ils ont déménagéensemble à Calgary l’été 2020, où Lia est née au printemps 2021. Mme Guignard et M.

Campbell ont mis fin à leur relation à la fin dumois de juillet 2022. Mme Guignard est originaire de Shippagan, au Nouveau-Brunswick. Elle a maintenant décidé de retourner à Shippagan. Elle est d’avis qu’il est dans l’intérêt de Lia[2] de déménager avec elle. Par conséquent, Mme Guignard présente une demandeà la Cour pour que Lia déménage au Nouveau-Brunswick. [2] M. Campbell est ingénieur dans le secteur de l’énergie. Il est originaire de la Colombie-Britannique, mais il travaille pourSuncor ou ses sociétés affiliées depuis plus de 10 ans qui sont tous à Calgary ou à Fort McMurray.

Il n’a pas l’intention de quitterCalgary. Je crois qu’il est juste de dire que, selon M. Campbell, le meilleur des cas pour Lia serait que ses deux parents demeurentprincipalement à Calgary. Toutefois, il reconnaît que la loi ne permet pas à la Cour d’envisager cette option. Dans ces circonstances, ilest d’avis que Lia devrait demeurer à Calgary pour qu’il assume la responsabilité quotidienne de Lia. M. Campbell a déposé unedemande d’ordonnance de temps parental à Calgary. [3] Le litige relatif au déménagement important et au temps parental a commencé peu de temps après la séparation.

Les seulesordonnances parentales ont été de nature provisoire et sans préjudice, en attendant l’issue de la présente instance. CONTEXTE PROCÉDURAL [4] J’ai été saisie de cette affaire lorsque je siégeais en chambre des affaires urgentes le 28 octobre 2022. À ce stade, il s’agissaitde déterminer si Lia devait retourner en Alberta en attendant une audience sur la demande de déménagement important ou d’ordonnancede temps parentale.

La Cour du Banc du Roi du Nouveau-Brunswick a décidé de ne pas exercer sa compétence, sauf pour rendre uneordonnance parentale provisoire sans préjudice. [5] Je n’ai pas eu à trancher la question du retour puisqu’une annulation d’audience a permis la tenue d’une audience dans undélai plus court que celui généralement disponible. Les parties ont convenu de la tenue d’une audience du 7 au 9 novembre 2022. Ils sesont aussi entendus sur l’exercice provisoire des responsabilités parentales.

Les questions à trancher à l’audience étaient ledéménagement important, l’exercice du temps parental et la pension alimentaire pour enfants. Le dossier comprenait des Affidavitsdéposés dans le cadre de l’action intentée au Nouveau-Brunswick, des Affidavits déposés dans le cadre de la présente action et destémoignages de vive voix de chacune des parties et de Nancy Smith, la mère de Mme Guignard.

L’audience s’est déroulée en anglais eten français, avec les services d’un interprète. [6] Le 1ᵉʳ décembre 2022, j’ai rendu une décision orale, informant les parties que j’avais des questions au sujet de leurspropositions quant au développement linguistique de Lia et de l’état du dossier à cet égard. L’affaire a été ajournée pour permettre auxparties de présenter des éléments de preuve supplémentaires sur cette question, si elles le jugeaient nécessaire. Les parties ont toutesdeux déposé un Affidavit et des observations supplémentaires. M.

Campbell a également présenté un rapport d’expert rédigé par EvelynWotherspoon. Je reconnais que le délai depuis décembre a eu un impact négatif pour les parties et pour Lia à plusieurs égards. Je lesremercie de leurs efforts, et je tiens à leur dire que les éléments de preuve supplémentaires ont aidé le tribunal. [7] D

[…]