D.G. Applicant - v. –, 2024 ABCJ 29

In the Alberta Court of Justice Citation : DG v RC, 2024 ABCJ 29 Date: 20240207 Docket: FF028000782 ;FF028000327 Registry: Peace River Between: D.G. Applicant - and – R.C. Respondent and R.C. Applicant -and- D.G and C.C.D.J. Respondents Restriction on Publication Identification Ban – See the Family Law Act ,

section 100. By Court Order, no person shall publish or broadcast information that may identify the children involved in this proceeding. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Reasons for Decision of the Honourable Justice A. B. Chrenek Overview [ 1 ] This is primarily a mobility application with respect to two children who are currently aged 5 and 10. It follows a year of significant litigation and upheaval for the two applicants. To protect the well being of the children, there will be publication ban issued pursuant to

section 100 of the Family Law Act , SA 2003, c 4 .5 prohibiting the publication or broadcast of any report on this proceeding which may identify the children.

[ 2 ] In February 2023, the applicant mother, D.G., sought primary care and sole decision-making of her youngest daughter. The child’s father, R.C., opposed the application and sought to maintain the shared parenting and shared decision regime the parties had previously operated under without court order. He also applied for contact with D.G.’s older daughter on the basis that he is a person standing in the place of a parent. [ 3 ] R.C. was charged with criminal harassment in February 2023 and subsequently with undertaking breaches, all of which involved D.G. as the complainant.

As a result, the parties were subject to a no contact order until the trial of the charges were concluded in October 2023. R.C. was found not guilty of criminal harassment and the breach allegations were withdrawn. [ 4 ] Following an interim Without Prejudice consent order in June 2023 which allowed communication about the youngest child without breach of R.C.’s no contact conditions, D.G. notified R.C. of her desire to move with both children from Peace River, Alberta to Sherwood Park, Alberta. The notice was provided on August 10, 2023. R.C. responded with his objection to the move on August 18, 2023.

That same week, R.C. also applied for guardianship and parenting of the older child, and in that application further indicated his opposition to the children relocating to Sherwood Park. [ 5 ] The guardianship and parenting application was served on both D.G and the child’s father, C.C.D.J. (“C.J.”). The mother opposed the guardianship application on the basis that R.C. had not played a significant role in the older child’s life.

C.J., who had not had contact with his daughter since 2018 despite a parenting order issued by this Court in January 2019, agreed with and supported R.C.’s guardianship and parenting application. [ 6 ] Since August 2023, D.G. has added an application to relocate to Sherwood Park and an application for child support for the youngest child, both ongoing and retroactive to 2019. She opposes R.C.’s guardianship application with respect to the oldest child, but suggests that upon her relocation, R.C. have both children every second weekend and specified holiday time.

Issues [ 7 ] These applications deal both with relocation and parenting. I agree with the decisions in CR v PS 2022 ABQB 410 and Campbell v Guinard 2023 ABKB 217 that where parenting and relocation are both in issue, a holistic approach can be taken without first determining the issue of parenting as if both applicants were continuing to reside in the same geographic location. [ 8 ] Taking this wholistic approach, the issues in these matters are:

a) In these circumstances, is it in the best interest of the children, or is it least detrimental to the children, to relocate with the mother to the Sherwood Park area or remain with R.C. in Peace River?

b) Should R.C.’s application be granted?

c) What is the impact on the 2019 parenting order with respect to the eldest child?

d) Is R.C. liable for ongoing and/or retroactive child support, and if so, in what amount? Background [ 9 ] D.G. has resided in Peace River for 12 years and is currently employed as a Compliance Lead with a major retailer. Her work hours are variable. She maintains that she works from 9:00 am to 3:00 pm Monday to Friday, but her co-worker and scheduler confirms that she may work at 6:00 am or 8:00 am to 4:45 pm. Typically her hours are somewhere between 9:00 am and 6:00 pm. [ 10 ] She resided with R.C. from the Spring of 2014 to the Spring of 2019, and they have one daughter together who is now 5 years old.

Prior to that, she resided with C.J. from the Spring of 2011 to the Spring of 2014, and they have a daughter together who is currently aged 10. [ 11 ] R.C. resides in Peace River and is employed as an outside sales representative working 8:00 am to 5:00 pm Monday to Friday and every fourth Saturday.

He worked greater hours prior to separation, but over the past 5 years has maintained employment that allows him to be available for the children. [ 12 ] After separation in 2019, both children resided primarily with R.C. from June to August 2019, and once D.G. found accommodations, they shared parenting of both girls on a weekly basis. Since that time, except for six weeks between February and April 2023, R.C. has had care of the youngest child every other week.

He also had the care of the older child every other week until 2020, and then has had varying degrees of time, primarily every second weekend, although he has consistently sought more time with the older child and spends time with both children almost every day at daycare. [ 13 ] C.J. resides in Grande Prairie and has had only one visit with the oldest child since 2018. His previous parenting time was sporadic and inconsistent. The mother claims that he was neither supportive nor attentive to their child when they resided together and made few attempts to have time with her after they separated.

The evidence of C.J. as well as the maternal grandmother and D.G.’s best friend contradicts this evidence, indicating that C.J. was an engaged and attentive parent during their relationship. There are several court orders between C.J. and D.G. regarding parenting of their child from 2015 to the last order on January 15, 2019, when C.J. was provided with reasonable and generous parenting time on 48 hours notice to the mother and with his two older daughters present. [ 14 ] C.J. maintains that he tried many times to have parenting time with his child with little success.

After the last parenting variation order in 2019, he believed the child had relocated to British Columbia as was contemplated in that order. He tried to contact D.G. but could not reach her. As a result, he felt that parenting time was not possible to arrange and eventually he gave up.

[15] In September 2023, C.J. had a brief visit with both children involved in these applications. He has also had two telephoneconversations with his daughter since that time as well. These all occurred during R.C.’s parenting time. R.C. made these arrangementsafter consulting with a local social worker and gently broaching the subject with the older child to determine her interest level. NeitherR.C. nor C.J. notified the mother about this parenting time beforehand. [16] D.G. similarly maintains that R.C. was not supportive with the children during their relationship.

She was a stay-at-homemother during the relationship after the youngest child was born, and R.C. worked long hours. She stated that he was often tired orsleeping when he was home from work. [17] Further, D.G. states that R.C. was verbally abusive to her when they resided together. The maternal grandmother witnessedR.C. call D.G. names in front of the older child during the relationship.

R.C agreed that the relationship was strained when the motherwas pregnant but indicated that this was because she was mean and demanding with him. [18] D.G’s best friend could not confirm her portrayal of the relationship between D.G. and R.C. or R.C.’s parenting. Instead, sheindicated that R.C. was and is a good, caring parent to both the children. [19] Upon separation, the mother and R.C. made co-parenting of both children work initially, and their communication wasreasonable.

They managed to continue this without the necessity of a court order until the end of 2022. [20] The mother had concerns starting in 2020 about R.C. smoking around the children. She also had a concern about him leavingthe youngest child once in the bathtub with the older child to oversee her. Further, she was concerned about how well he manages hisdiabetes and high blood pressure following a health incident he had in February 2023. Finally, she raised concerns about rumors sheheard about an acquaintance of R.C.’s who she understood to be around both her children.

The mother has terminated R.C.’s time withthe older child at certain points since 2020 largely due to feeling that R.C. disregarded these concerns. This did not impact R.C.’s timewith the younger child. [21] The mother seeks to go live with the maternal grandmother and step-grandfather. This will provide her with support as sheworks towards improving her education and employment. She has looked into the available services and amenities in the Edmonton,Sherwood Park and Tofield, Alberta such as more specialized health services and extra-curricular activities for these children.

Thesethree communities are all within a half hour of Beaver County, Alberta, which is the location she proposes to relocate the children to.

a) In these circumstances, is it in the best interest of the children, or is it least detrimental to the children, to relocate withthe mother to the Sherwood Park area or remain with R.C. in Peace River? [22] While there is no parenting order in place with respect to the youngest child, there is an order relating to the oldest childwhich provides her day-to-day care to the mother and reasonable access upon certain terms to C.J. [23] In addition to the lengthy loss of contact between the older child and C.J., the mother’s stated intention to relocate the child toBeaver County is a material change in circumstances, and none of the parties took issue with this requirement being met in the mother’srelocation application. [24] The application requires a consideration of factors related to the best interests of the children as set out in

section 18 of theFamily Law Act, and the common law principles first set out in Gordon v Goertz (SCC), [1996] 2 S.C.R. 27, that wereessentially codified in the amended Divorce Act, RSC 1985 c.3 and refined in Barendregt v Grebliunas, 2022 SCC 22. This inquiry isfact specific, and ultimately, the children’s physical, emotional and psychological safety, security, and wellbeing are paramount:Barendregt at para 152. [25] While I will consider the factors in the Divorce Act, I will do so without reliance on the burdens of proof in those provisions.

The current jurisprudence indicates that they should not be applied in the context of Family Law Act applications. I simply apply thenormal balance of probabilities test to the mobility application. [26]

Section 18 of the Family Law Act requires the court to ensure the greatest possible protection of the children’s physical,psychological and emotional safety and consider the children’s needs and circumstances. Additional factors relating to the best interestsof the children under the relocation provisions of the Divorce Act focus on the reasons for the move, its impact, and the reasonablenessof the relocation proposal. [27] A factor that is specifically not to be considered pursuant to

section 16.92(2) of the Divorce Act is whether or not the applicantwould relocate without the children if the application is denied. This did form part of D.G.’s evidence, strictly to address the matter ofparenting outside of the relocation application: Lemay v Lemay 2023 ABKB 303. Accordingly, for the purposes of the relocationapplication, I disabuse my mind of this evidence and turn instead to the relevant factors.

The children’s physical, psychological and emotional needs, including their need for stability, taking into consideration their age andstage of development. [28] The children are currently in kindergarten and grade 5 respectively. [29] The youngest child is autistic and non-verbal. She is an energetic and loving child. She also suffers from PICA and ingestsobjects such as rocks when unsupervised. She requires constant supervision and significant resources such as designated aids at bothschool and daycare together with a speech and language pathologist.

She has been in the same day care with two aids for most of her lifeexcept for the month of January 2024, and has a supportive school environment where she attends full days along with the children shehas grown up with. Her full-time attendance at school has already brought positive developmental changes such as greater maturity anda greater willingness to participate in her own care such as toileting and brushing her teeth. [30] The youngest child has an allergist and is very susceptible to cigarette smoke. She has a pediatrician in Grande Prairie,

approximately two hours southwest of Peace River, and a neurosurgeon in Edmonton, approximately 5 hours southeast of Peace River, to assist with fluid that builds up on her spine. She sees the pediatrician and the allergist every six months, and the neurosurgeon once a year. This child is registered with and receives funding from Family Supports for Children with Disabilities (“FSCD”), which allows the parties to obtain the funding and services they require. [ 31 ] The oldest child has ADHD and requires daily medication. She has an ADHD doctor and is doing well academically at school.

She is described as generally very active and outgoing. The mother relocated this child to Beaver County in September 2023 where she lived with the maternal grandmother and attended school for a few weeks before a court order required her to return to Peace River pending the outcome of these applications. [ 32 ] Since the fall of 2023, the oldest child’s mood has changed, and she has been struggling emotionally. She has had counselling support from a mentor at the school in Peace River, and this has been helpful.

In November 2023, however, her medication dosage increased, and she has been less energetic and less “herself” since that time. R.C. has questioned the benefit of the increased dosage on this basis, and in response the mother has arranged an appointment for him to meet with the child’s doctor in February 2024. The parties have not otherwise discussed the issue. [ 33 ] Relocating these children will inevitably result in a disruption to their surroundings and schedules. The youngest child, in particular, appears to be thriving in her current surroundings.

The history of care of the children. [ 34 ] During the relationship between the mother and R.C., I find that despite working more hours than he does presently, R.C. acted as a father to the eldest child and has been an engaged and active parent to both children. His relationship with the mother was clearly strained both before and after the youngest child was born.

Despite this, both have been very involved in the day-to-day lives of the children. [ 35 ] Since their separation, the mother has been primarily responsible for all decisions relating to the eldest child and has been responsible for arranging most of the health and benefit requirements of the youngest child. She has ensured that the children have the care that they need and see the specialists required.

She has also made sure that all necessary services for the youngest child to date have been made available with appropriate funding. [ 36 ] R.C. has played a roll in ensuring that the children’s needs are met as well.

This past year it was his advocacy with the school that saw the youngest enrolled in full attendance rather than part-time only, and he has been vocal in ensuring that the children are both receiving appropriate medical care, an example of which is wanting to canvas the need for the increase in the eldest child’s medication. [ 37 ] While R.C. spends less time with the eldest child than with the 5-year-old, they do see each other regularly and their time together may best be described as enhanced by quality rather than quantity.

Further, it was clear in the evidence before me that R.C. has continuously sought to have more time and has tried to work with the mother to ensure that he maintained consistent and constant contact with the older child throughout her life. [ 38 ] Both the mother and R.C. provide a home environment that is designed for two active children, each with their respective health concerns. The mother consistently sees to the children’s health and needs. R.C. ensures that the children have significant play and activity as part of their daily routine.

Both D.G. and R.C. provide structure and discipline for the children while in their care. The children’s views and preferences to the extent that they can be determined. [ 39 ] The views and preferences of the youngest child are difficult to discern one way or the other. The evidence indicates that she is comfortable and content with both of her parents as well as her maternal grandmother and step-grandfather.

She is also close to her paternal grandparents who visit Peace River a few times each year for a month or two at a time from the east coast, and her paternal aunt who lives nearby Peace River. [ 40 ] The eldest child enjoyed the school experience she had briefly in Tofield this past September and has a very close bond to her maternal grandmother. The mother and maternal grandmother believe that her actions and comments demonstrate that she wants to make the move with her mother, and she does not want to be in Peace River.

R.C. questions whether the oldest child has the insight to fully appreciate the issue and the impact the move would have. Any plans for the children’s care and upbringing. [ 41 ] The parties each described a plan to ensure the best care and resources available for the children in each area.

D.G. provided a detailed list of available services and activities approximately 20 to 40 minutes away from her proposed residence, and R.C. referred to the continued use of both FSCD and Inclusion Alberta. [ 42 ] The mother spoke of the ability to access autism specific play and therapeutic facilities closer to Edmonton, and to be able to enroll the children in more activities. Residing with her mother and stepfather would enable her to get ahead financially, improve her education and training for work, and have their help in getting the children to appointments and activities.

Currently neither child is enrolled in activities as they interfere with the children’s bedtimes, and the mother feels that she has no support to get the children to and from activities. She has not requested any assistance in this regard from either of the children’s fathers. [ 43 ] R.C.’s plan for the children is to keep them engaged in school and their favorite activities. He would like to enroll the eldest in soccer and perhaps a cooking program and continue to take both girls to the various parks they typically visit and to swim at the pool which they enjoy.

He also plans to continue to take them camping and keep up with their extended family and friends. He would be willing to provide the necessary assistance of another parent the mother feels is currently missing in her parenting regime to get the children to events and activities.

[ 44 ] Each parent presented the proposal to maximize the other’s time with the children on weekends and during school breaks, preferably in the area where the children are ultimately living on 2-day weekends with the visiting parent either staying with friends or at a hotel in the area. [ 45 ] Video calls and regular phone contact are also factored into both plans, but this is less effective for the youngest child who provides limited engagement in such calls unless animal filters are used to keep her attention.

Family violence and its impact. [ 46 ] There were ongoing criminal proceedings against R.C. for much of 2023. In addition, there was evidence of verbal abuse by R.C. from D.G. and her mother, although this reportedly occurred during the relationship over 5 years ago. [ 47 ] R.C. was found not guilty of criminal harassment. The allegations that he followed D.G. and repeatedly communicated with her were not found to meet the criminal standard. He maintains that the charges were laid to provide a better position to the mother in the custody matter instituted at the same time as the charges were laid.

D.G. maintains that she instituted the custody proceedings on the advice of the police. She indicates that she still feels unsafe residing in the same town and same general area as R.C. [ 48 ] I find on a balance of probabilities that any verbally abusive behaviour during the relationship between these parties was not strictly one-sided, with neither treating the other parent with a great deal of respect.

Regarding the more recent harassing behaviour, I find that R.C. failed to recognize the unwanted effect of some of his actions and communications, exacerbating an already tense and difficult relationship between these parents. [ 49 ] Certainly, the events of the past year have eroded whatever level of trust may have existed between these parties prior to February 2023.

While parenting time with respect to the youngest child was not significantly impacted, the litigation and hostility has taken a toll. [ 50 ] To the credit of each party, they seem to have managed to continue sharing time with the youngest child and dealing with their communication hurdles by working around one another and communicating through various school and health care providers for the benefit of the children.

What the long-term impact of this past year will be is yet to be determined, but it is promising that both D.G. and R.C. expressed a desire and hope to improve their communication about the children going forward. The nature, strength, and stability of the relationship between the children and significant people in their lives. [ 51 ] The children each have a strong relationship with the mother and R.C., as well as their extended family on both sides.

The children spend considerable time with their paternal grandparents who come to visit in Peace River and with their maternal grandmother and step-grandfather, who relocated to Beaver County in August 2023. They see their maternal grandfather less frequently as he resides half of the year in the United States and the other half just outside of Edmonton. [ 52 ] The oldest child has a particularly strong relationship with the maternal grandmother.

Over the past 5 years, the maternal grandmother has lived in various places including Grande Prairie, Alberta as well as Salmon Arm and Williams Lake, British Columbia, and she and the oldest child have spent extended time together during the summer months. [ 53 ] The children are very close to each other as well.

While they currently spend every second week apart, there is a strong connection between these sisters and a desire by all parties to keep them together. [ 54 ] The eldest child has a very limited relationship with her biological father, C.J., having only seen him once and spoken to him twice in her recent memory.

While there is a desire by all parties for C.J. and the eldest child to form a more consistent and involved relationship, no steps have been taken in that regard. [ 55 ] The children also have a significant relationship with the mother’s best friend and her family, who they have known and been close to their entire lives. This family, however, is also contemplating a move away from Peace River to Slave Lake, Alberta. No actual plans have been formalized at this time. [ 56 ] The children spend holiday time and other occasions with their paternal aunt and her family a short distance outside of Peace River.

The children’s paternal aunt acts as a support for R.C. much the same as D.G.’s best friend does for her. The ability to care for the children and to communicate and co-operate on issues affecting the children. [ 57 ] Both the mother and R.C. meet the needs of these children when they are in their care. They each provide their own individual strengths in ensuring the best care for each child. They have each developed their work schedules to focus on their role as parents. [ 58 ] The mother has a

schedule and routine for the children. Until recently, it is the mother who has arranged for all the youngest child’s services through FSCD. [ 59 ] R.C. has been a strong advocate for the youngest child to ensure she has the same education as the peers she has grown up with at daycare, and he provides these energetic children with regular play and activity. [ 60 ] R.C. makes a point of smoking away from the children, outside on his deck, and takes precautions to ensure that neither child is exposed to cigarette smoke. Initially last September he failed to adhere to the eldest child’s daily medication requirements. He has since come to understand the need for daily medication, and it is

part if the eldest child’s routine now in both homes. He has taken steps to manage his health and has made plans to address the children’s care in the event of emergency.

[ 61 ] Since the removal of no contact requirements in the fall of 2023, very little information regarding the children is being exchanged between the mother and R.C. In addition to C.J.’s parenting visit, R.C. had to locate an alternate childcare provider last month as the youngest child’s aids at daycare were unavailable. He located a friend and added her to an app both parents were on before communicating this to the mother. Similarly, D.G. was advised of a school incident in December where the youngest child’s behaviour was inappropriate, and R.C. found out about it during this hearing.

No medical information is exchanged and instead information about appointments and recommendations are relayed by health care professionals separately to both parents. [ 62 ] I raised the lack of communication with counsel who rightly urged me to remember that to date the parties have made their varying levels of communication work for the most part. I also take notice of the fact that the current poor communication follows a year of criminal charges, no contact obligations and significant family litigation.

I recognize that prior to last year, the parties co-parented the youngest child and communicated sufficiently to manage that relationship as well as R.C.’s time with the eldest child. This included things like R.C. seeing both children at daycare regularly. [ 63 ] In terms of willingness to communicate, the evidence of R.C. is that he would provide detailed information to the mother following a medical appointment but would receive only basic information from the mother in the reverse situation. [ 64 ] The mother generally was unwilling to have contact or communication with R.C.

I am cognizant that this follows the criminal charges last year, and her sense of unease, but this unwillingness to communicate was periodically an issue beforehand. Between 2020 and 2023, R.C. attempted to communicate with the mother directly and also tried to recruit her best friend to intervene on his behalf when the mother was unwilling to discuss his ability to spend time with the eldest child. [ 65 ] An unwillingness to communicate also is evident in the mother’s parenting relationship with C.J. The mother has made only one attempt to communicate with C.J. about the eldest child over the last 5 years.

He was not informed that the child did not relocate to British Columbia as was contemplated in the 2019 order. He was not informed of the child’s ADHD diagnosis, or that she was relocated to Beaver County in the fall of 2023. The benefit to the children maintaining meaningful relationships and the willingness of each guardian or proposed guardian to exercise the powers, responsibilities, and entitlements of guardianship. [ 66 ] In addition to their strong relationships with family and friends, the children have a connection to their daycare and the schools they attend in Peace River.

The youngest child has a core of aids and all the children that she has grown up with at daycare and preschool. She is well settled and comfortable with all these people. [ 67 ] The eldest child has a consistent ADHD doctor she currently sees and has been working with a mentor at her school in Peace River. The eldest child is very social, however, and was able to make friends easily when she attended school for a few weeks near Beaver County.

Other Family Law Act factors. [ 68 ] The cultural, linguistic, religious, and spiritual heritage and upbringing of the children was not raised by any party to the application. There are no current civil or criminal proceedings that are relevant. The reasons for the move. [ 69 ] The relocation would provide the mother assistance with the children while she improves her education and financial position.

This relocation would further enhance the strong relationship the children have with the maternal grandmother and allow the children to be closer to the paternal grandfather for the portion of the year he is in Canada. [ 70 ] The mother has done significant research on the programs and services available for both children in the Beaver County area and maintains that the children’s medical and dental needs and their overall well-being and development will be better served by the relocation closer to Edmonton. [ 71 ] The Glenrose Rehabilitation Hospital is approximately 40 minutes from the proposed residence and offers autism outreach programs and support.

A specialized autism gym is located in Edmonton and other services such as summer camps, caregiver education, occupational therapy, behaviour and development supports, specialized dental and physiotherapy services, respite care and counselling are all available in Edmonton and Sherwood Park. Autism Edmonton and the Center for Autism Services provide specialized services.

All services the children currently access such as the PUF program for speech and language and aids are also available. [ 72 ] The oldest child has already spent a few weeks at the school she would attend and enjoyed the bus ride to and from school. She would have access to activities, school sports and after school programs as well as greater ADHD services in the Edmonton area. [ 73 ] The proposed relocation to Beaver County follows various other requests by the mother to relocate with the children to other locations over the years.

As of June 2023, this proposed location for the mother’s move was not yet determined. Beaver County was determined during the summer of 2023 when the maternal grandmother moved there from British Columbia. [ 74 ] The mother also felt that distance would help to relieve the tension and assist in improving the communication between herself and R.C. [ 75 ] The services she has researched are more likely than not more available within a 45 minute drive of the proposed residence than they are in Peace River.

Behaviour and development services for the youngest child were identified as a current need by the mother following the incident at school in December 2023. As it was a recent development, steps had not yet been taken to access this type of service in Peace River. The other specific services that were identified as a current unmet need include specialized dental and physiotherapy and a specialized play area such as We Rock the Spectrum gym.

[ 76 ] The additional activities, particularly for the eldest child, are available albeit to a lesser extent in Peace River, but without the assistance of the mother’s parents to help with getting the children to and from. The impact relocation would have on the children. [ 77 ] The children would both change schools, with the oldest returning the school she attended briefly in September 2023. She has already made friends at the new school and could rekindle those relationships.

The oldest child will require a new ADHD specialist to replace the one she sees at the clinic in Peace River. [ 78 ] The youngest would start at a new school with new aids and a new speech therapist. She would also require a new pediatrician. Both children would have a new dentist. A family doctor in Edmonton is already available but has a limited history with the family.

The youngest child would have to make new friendships with her peers at school, which would be challenging as she does not easily form strong bonds. [ 79 ] The most significant impact of the move however would be the loss of the consistent and constant contact that each child, particularly the youngest, would have with the other party. If the children relocate, the significant relationship with R.C. and his extended family will be greatly reduced, as will the strong bond and relationship they have with the mother if they remain in Peace River when she relocates.

The amount of time spent with the child and each person’s level of involvement. [ 80 ] The youngest child spends time equally with each parent. While the oldest child spends most of her time with the mother, she has constant and consistent quality time with R.C, and benefits from the different aspects of parenting each of her mother and R.C. bring to her care and needs. [ 81 ] C.J. has had very little time and involvement with the eldest child.

Reasonableness of the proposed plan by the person seeking to relocate. [ 82 ] As discussed in terms of the plans each party has for the children, both afford the reasonable time to the other parent. Each plan will severely limit the parent not with the children due to distance and the youngest’s child ability to participate in video calls.

The existence of an order , 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, and the likelihood of future compliance with these obligations. [ 83 ] The only current order relating to the oldest child contemplated her living in British Columbia and has not been followed by either parent, limiting the relevance of this factor to the relocation application.

Conclusion on the Relocation Application [ 84 ] If the relocation of the children is not permitted, disrupting their current time in the care of the mother would undoubtedly have a detrimental impact on the children. It would also limit the time they spend with the maternal grandmother. There may be disappointment on behalf of the eldest child remaining in Peace River and without the consistent care of her mother. [ 85 ] R.C. has also played a significant role in the lives of the children and removing them from Peace River would significantly reduce the time he would have with them.

The youngest child would see a major disruption to her weekly rotation in her father’s care, and neither child would have the consistent and frequent contact with R.C. they do now at daycare. [ 86 ] There may be benefits to the children relocating such as more time with the maternal grandmother, and an enhanced level of available services. The evidence was that the maternal grandmother currently sees the youngest child multiple times per year and has extended time with the oldest child each year.

Further, the services and activities are still 20 to 40 minutes away from the children’s proposed home, and there were only a few specific services that the children currently require which may be significantly more available in the Edmonton area. [ 87 ] The oldest child may adapt more easily to the disruption of relocating with her mother. On the other hand, the oldest child has already been relocated and returned once in the past six months and is trying to get used to a medication dosage change.

Another disruption may be more difficult as a result. [ 88 ] The youngest child is well entrenched in a large supportive environment at school and daycare in Peace River. She is also very close to her older sister, and it would not be in either’s best interest to see them separated. [ 89 ] I find that R.C. is more likely to communicate and co-operate with carrying out the plans for parenting post-relocation. He has developed a process to keep the children away from cigarette smoke and has addressed any of the concerns raised by the mother.

He can care for the children and access the necessary supports and services required. [ 90 ] Based on all the factors considered, I find that it would be in the children’s best interests and least disruptive to them to remain in Peace River in the care of R.C. instead of relocating to the Sherwood Park are with the mother .

b) Should R.C.’s application be granted? [ 91 ] In accordance with the decision in Lemay , having determined the issue of relocation where such evidence was not considered,

counsel seek a re-consideration of parenting reflecting the mother’s evidence that she would not relocate without the children. [ 92 ] R.C. seeks guardianship, shared decision making and parenting for the eldest child, and primary parenting and decision making for the youngest child. D.G. objects to R.C. being named as a guardian and proposes to continue shared parenting and shared decision making for the youngest child and have R.C.’s contact with the oldest child occur every second weekend. [ 93 ] D.G. cites the decision in Smith v McCulloch 2019 ABQB 534 .

She argues that R.C. has not previously been involved in decision making for the older child who already has two guardians.

She maintains that R.C. and the eldest child can secure their time together and any issues with breaks in that relationship that have arose in past can be resolved by a contact order. [ 94 ] C.J. consents to the guardianship application of R.C. and supports his request for parenting and decision making with respect to the oldest child. [ 95 ] The Family Law Act permits a guardianship application in the absence of a guardian’s consent where there are good and sufficient reasons to do so. [ 96 ] The facts in this matter are distinct from in Smith , where it was the stepfather who resided with the mother seeking guardianship that was opposed by the biological father.

There the biological father had taken financial responsibility for the child and had sought and exercised parenting time. [ 97 ] Throughout the oldest child’s life, R.C. has taken on the responsibilities of guardianship to the extent permitted and in the time allotted him by the mother. He has demonstrated an ability and willingness to act in the child’s best interest and sought to have a more active role in this child’s life.

He has been her father in all but biology. [ 98 ] R.C. is suitable and willing to actively take on the responsibilities of guardianship, and to continue to play a significant role in the life of this child. Despite the objection of the mother and considering the best interests of this child as detailed in these reasons, there are sufficient reasons to make R.C. a guardian of the older child. [ 99 ] The parenting arrangement that is in these children’s best interest is shared parenting on a weekly basis regarding both children.

As described above, the children have a significant and loving relationship with each parent, and each parent brings their own strengths and attributes that when balanced together enhance both children’s lives. The children’s interests are best served having both parties’ strengths on a regular and consistent basis. [ 100 ] There are concerns about the parties’ communication, but each has expressed a desire to improve and a willingness to follow court orders.

It will take time to move past the events of the last year and return to the reasonable level of communication the parties had previously, but in the meantime, they have developed third party communication that is at least manageable.

c) What is the impact on the 2019 Parenting Order with respect to the eldest child? [ 101 ] C.J. attended the trial of this matter and participated as a respondent but did not apply to vary the terms of the January 15, 2019 parenting order.

While C.J. made unsuccessful attempts to contact D.G., he ultimately gave up seeking parenting time. [ 102 ] All parties expressed a desire to reinstate consistent parenting time for C.J with the eldest child, and for consistent communication by phone or video call, but no specific proposal was advanced. [ 103 ] While the addition of R.C. as a guardian and the parenting time provided him will necessarily have a practical impact on the 2019 order, the only variation arising from these proceedings is that C.J.’s parenting time should be on 48 hours notice to all guardians.

In all other respects the order remains the same. [ 104 ] It is hoped, however, that the parties will eventually commence a regular discussion regarding this child and work co- operatively to ensure consistent phone contact and ultimately in-person contact with C.J.

d) Is R.C. liable for ongoing and/or retroactive child support, and if so, in what amount? [ 105 ] The mother seeks child support from R.C. for the youngest child from 2019 to present. This application was filed in November 2023. [ 106 ] Prior to this application, no child support was paid by R.C. to the mother. Instead, the parties shared costs for the youngest child’s daycare and diapers equally. R.C. also contributed to the cost of needs like clothing together with some costs associated with the older child as well.

This arrangement was determined by D.G. and R.C. when they started to share parenting in 2019. [ 107 ] A notice to disclose was provided and the parties’ incomes during the relevant time frame are as follows: D.G. R.C. 2020 $30,559.00 $53,958.00 2021 $34,556.00 $70,861.00 2022 $32,160.00 $84,958.00 2023 $38,000.00 (estimated) $85,000.00 (estimated) [ 108 ] In 2019, D.G.’s income provided was the same as in 2020 at $30,559.00.

[ 109 ] R.C. did not provide income information for 2019. His evidence was he worked until roughly May 2019 earning $55.00 per hour working anywhere between 20 and 70 hours per week. He then worked for a few months at $20.00 per hour over a 40-hour work week, and ultimately ended up with his present employer working at the front counter. [ 110 ] D.G. has based her retroactive support claim on the parties having the same income for 2019 as they did in 2020, claiming support for two months in 2019. [ 111 ] For 2023 and this year, D.G. estimates her guideline income will be $38,000.00.

R.C. estimated his 2023 income to be $85,000.00 and his 2024 income to be $90,000.00. [ 112 ] In their 2019 arrangement, the parties contemplated sharing all the youngest child’s expenses equally. They contemplated the cost of daycare and diapers specifically, and I find that when other things were required, they shared the cost of those things as well. They acted on this cost sharing arrangement for the last four and a half years. Ongoing Support [ 113 ] Child support is the right of the child.

The Supreme Court of Canada in Michel v Graydon 2020 SCC 24 at para 44 described c hild support as “the means through which the law ensures that individuals with parental responsibilities provide financial assistance to their children upon separation from their children's other parent.”. [ 114 ] Child support is also founded in

section 49 of the Family Law Act . The legislation confirms the child's needs come first. The Alberta Child Support Guidelines, Alta Reg. 147/2002 as amended maintain the core principles of child support and provide certainty and predictability with respect to appropriate amounts of support. [ 115 ] Ongoing support is sought by the mother for the full year in which the application was filed, commencing January 1, 2023: Henderson v Micetich 2021 ABCA 103 at paragraph 35 . The year-to-date paystubs provided are consistent with the estimated income for 2023 and ongoing support is therefore calculated based upon the estimated incomes of $85,000.00 for R.C. and $38,000.00 for D.G. [ 116 ]

Section 9 child support pursuant to the Guidelines is $439.00 per month payable by R.C. to D.G. The amount unpaid for

section 9 support from January 1, 2023, to date totals $6,146.00. [ 117 ]

Section 7 expenses going forward are primarily related to childcare totaling $291.00 per month, and based on the proportionate incomes, R.C.’s portion of this would be 69%, or the sum of $201.00 per month. There was no amount sought by D.G. for the unpaid portion of ongoing support for

section 7 expenses, and not relief is ordered. [ 118 ] The parties also share the cost of diapers by providing the same directly to the school and daycare. D.G. and R.C. will continue to provide diapers directly to the school and daycare as has been the practice over the past several years. [ 119 ] Ongoing child support will be $439.00 per month payable by R.C. to D.G. on March 1, 2024, and on the first of each month thereafter. [ 120 ]

Section 7 expenses will be shared with R.C. paying 69% and D.G. paying 31%.

Section 7 expenses will be payable by R.C. for daycare currently in the amount of $201.00 per month. R.C. will pay such further and other expenses for any health-related expenses and medical and dental expenses not covered by either party’s insurance or any benefits the child is eligible for, as well as extraordinary extracurricular expenses as agreed to by the parties in advance. Payment of

section seven expenses in this fashion will commence March 1, 2024. [ 121 ] The unpaid amount of $6,146.00 may be paid by R.C. to D.G. in the sum of $100.00 per month commencing March 1, 2024. Retroactive Support [ 122 ] In terms of retroactive child support, the Supreme Court decisions in Michel and S. (D.B.) v. G. (S.R.) 2006 SCC 37 (“ DBS ”) are instructive.

These and other decisions have focused on a retroactive child support award as a debt owing to the child, and the issue is primarily whether a retroactive award should be granted considering the factors in DBS : Fleming v Spence 2023 ABCA 315 at paras 26- 27 . [ 123 ] In DBS , the majority of the Supreme Court presented four factors to help determine when an award for retroactive child support is appropriate: the receiving parent's reason(

s) for delaying their application for child support; the conduct of the paying parent; the circumstances of the child; and the hardship the award creates for the paying parent. No one factor is decisive. They are applied and considered in line with the fact that retroactive support is a legally enforceable debt: Michel at para 109 . The Reasons for the Delay [ 124 ] D.G. provided limited reasons for the delay in seeking child support. The evidence suggests that there was an initial discussion in 2019 between her and R.C. in which they agreed to share the costs equally because they had shared custody.

D.G. argues that because of the custody arrangement, which initially related to both children, R.C. told her costs were 50/50 and that was it. At the time, D.G. was receiving monthly child support for the eldest child from C.J., based on their court orders which provided her with primary care. [ 125 ] R.C. states that they never really spoke about child support. He had both children initially and then parenting time was shared equally.

[ 126 ] Here there has been a delay of over 3 years from separation. I find that the mother and R.C. determined a cost sharing arrangement early on in their shared parenting regime, and I find that they have followed this cost sharing arrangement or pattern of support since that time. [ 127 ] Delay in and of itself does not necessarily prejudice a retroactive support award.

Delay alone is not inherently unreasonable, and not all four DBS factors are required for a retroactive award. [ 128 ] Both parents have a positive duty to ensure that adequate support is provided for a child, and timely support applications are to be encouraged. As a result, why D.G. waited to bring an application is a relevant factor, but it is only one factor considered in the analysis. Conduct of the Payor Parent [ 129 ] Blameworthy conduct typically weighs in favour of a retroactive award and may also serve to expand the length of the retroactive award.

An absence of blameworthy conduct is not determinative of the issue of retroactive support, however, and is also one of several factors for consideration. [ 130 ] R.C. has had care for the youngest child on a weekly alternating basis and has provided financial assistance in accord with the cost sharing arrangement or pattern of support.

The evidence suggests that as the child required anything outside of the shared childcare costs, such as travel to Edmonton for medical appointments or items like furniture that may help soothe the child, they have been provided by R.C. as well as by the mother. [ 131 ] R.C. was aware that the mother received monthly child support from C.J. with respect to the older child. Aside from this, however, the issue of child support did not arise until 2023. [ 132 ] I recognize that despite the cost sharing arrangement, R.C. has had the use and benefit of any guideline child support during the period requested by D.G.

Circumstances of the Child [ 133 ] There was some evidence that the mother sought to relocate for greater support and to improve her financial position. There was also some evidence that the maternal grandmother provided financial assistance when the mother resided with C.J., but not since. There was otherwise limited evidence that the child suffered any deprivation or hardship during the last 3years. That said, hardship is not required to be established to receive a retroactive child support award. A parent’s obligation continues when a child’s needs are being met.

Hardship the Award Might Entail [ 134 ] If the retroactive award would cause undue hardship to R.C., this factor may weigh against a retroactive support award, or it may affect the length of time retroactive support may be payable to achieve a fair result. Once again, this is but one factor, and it is considered in light of the hardship that may be caused to the child and D.G. if the retroactive amount owing is not ordered to be paid. [ 135 ] Here, if we go back to 2019, the retroactive

section 9 amounts sought are as follows: 2019 – 2 months at $448.00 less $261.00, or $187.00 per month, totaling $374.00; 2020 - $448.00 less $261.00, or $187.00 per month, totaling $2,244.00; 2021 - $610.00 less $287.00, or $323.00 per month, totaling $3,876.00; 2022 - $747.00 less $271.00, or $476.00 per month, totaling $5,712.00. [ 136 ] The total of these amounts is $12,206.00. [ 137 ] A large lump-sum award such as this would undoubtably be very difficult for R.C. to pay. While he anticipates an income of $90,000.00 in 2024, his evidence is that he was unable to afford legal assistance for this hearing.

He will be commencing the payment of ongoing support based on the guidelines and will have to pay the unpaid portion dating back to January 2023 in addition to the increased amount of monthly support. [ 138 ] At the same value of $100.00 per month used for the ongoing support, it would take 12 years, or the rest of the youngest child’s childhood, to pay off the retroactive support in full. Conclusion on Retroactive Support [ 139 ] Neither parent have denied the youngest child the support provided in each household, and the child’s additional needs including childcare and diapers.

None of the typical reasons for delay in bringing a child support application are present here such as a lack of information regarding the payor's income, or a lack of access to justice as D.G. had previous experience with seeking relief through the court for the eldest child.

I do not find that the cost sharing arrangement developed due to any intimidation or misleading behavior by R.C. but rather as a pattern of paying that both parents accepted. [ 140 ] In more recent court precedents on the issue of delay, in the “absence of a clear agreement or court order that waives disclosure requirements or provides for another mechanism to calculate child support, delay will rarely substantially prejudice a payor parent:” Henderson at paragraph 42 .

[ 141 ] While the inaction of both parents to seek child support in accordance with the Guidelines has benefitted R.C. to the extent that he continued to have the use of the funds that would have been payable, both he and D.G. operated pursuant to an arrangement of cost sharing and both adhered to that arrangement, structuring and determining their finances pursuant to it. [ 142 ] R.C. will have great difficulty paying a retroactive award.

However, determining hardship requires the court to have regard to unfairness created in all the circumstances to not only R.C but also to D.G. and the child. [ 143 ] During the hearing of this trial, the evidence confirmed that the youngest child’s needs have been met and she has had the benefit of proper supports and medical care.

There was no evidence that there has been any significant detriment to the child or the mother because of the cost sharing arrangement. [ 144 ] Weighing all these considerations, I find the cost sharing arrangement in place between 2019 and 2022, the delay, the lack of blameworthy conduct beyond retaining amounts that may have otherwise been payable without any significant detriment to the child, and the hardship an award would entail favor dismissing the claim for retroactive child support.

Conclusion [ 145 ] The mother’s application for relocation is dismissed. [ 146 ] R.C.’s application for guardianship and parenting is granted. [ 147 ] R.C. and D.G. will have shared parenting and shared decision-making with respect to both children on a weekly rotation, consistent with the current parenting arrangement for the youngest child. The parties will share summer school break equally as agreed upon by them.

In the event the parties are unable to agree, the default will be that R.C.’s choice of time with them will be preferred in all odd numbered years commencing in 2025 and D.G.’s choice of time will have preference in 2024 and all even numbered years.

They will also share Christmas school break equally as may be agreed upon by them to be wither a week with each or the entirety of the Christmas school break, and failing an agreement, R.C. will have the children for Christmas in all even numbered years starting in 2024 and D.G. will have the children for Christmas in all odd numbered years commencing in 2025. [ 148 ] No party will expose the youngest child to cigarette smoke, and no party will speak negatively about any other party to the children. [ 149 ] The parties will make their best efforts to communicate about all matters relating to the children either though the school, daycare, childcare provider, health practitioner or mutually agreeable third party with a view to rebuilding direct communication by text, email or phone call over time. [ 150 ] The January 15, 2019, order between D.G. and C.J the will be varied to reflect that C.J.’s parenting time should be on 48 hours notice to all guardians.

In all other respects that order remains the same. [ 151 ] Ongoing child support will be $439.00 per month payable by R.C. to D.G. with the first payment to be made on March 1, 2024, and on the first of each month thereafter. [ 152 ]

Section 7 expenses will be shared with R.C. paying 69% and D.G. paying 31%.

Section 7 expenses will be payable by R.C. for daycare currently in the amount of $201.00 per month. R.C. will pay such further and other expenses for any health-related expenses and medical and dental expenses not covered by either party’s insurance or any benefits the child is eligible for, as well as extraordinary extracurricular expenses as agreed to by the parties in advance. Payment of

section seven expenses in this fashion will commence March 1, 2024. [ 153 ] The unpaid amount of child support from January 1, 2023, to date is $6,146.00 and may be paid by R.C. to D.G. in the sum of $100.00 per month commencing March 1, 2024. [ 154 ] The claim for retroactive support from 2019 to 2022 is denied. [ 155 ] If the parties are unable to agree on the costs of the hearing, they may return the matter before me for determination. Heard on January 17 th , 18 th and 19 th , 2024 . Dated at Peace River, Alberta this 7 th day of February 2024. A.B. Chrenek A Justice of the Alberta Court of Justice

Appearances: K. M. Andres For the Applicant, D.G. R.C. Self-represented C.J. Self-represented