JLW v CH, 2023 ABCJ 280

In the Alberta Court of Justice Citation: JLW v CH, 2023 ABCJ 280 Date: 20231214 Docket: FF901003055 Registry: Calgary Between: JLW Applicant - and - CH Respondent Oral Judgement of the Honourable Justice M.J. Shaften Introduction [ 1 ] In the matter of EH, born May 2010. [ 2 ] This is an application by JLW (Mother) filed October 4, 2023, to Vary the Consent Final Parenting Order granted by Assistant Chief Judge R.

O’Gorman on March 29, 2018. [ 3 ] The Mother seeks the following: 1) Parenting time in consultation with EH – if EH does not want to go to respect his decision. 2) Neither parent to permanently remove EH from the City of Calgary or the surrounding area including Airdrie, without prior court Order or written consent of the other parent. 3) In case of disagreement on decisions regarding the child, the Mother’s decisions shall prevail. 4) For shared decision to continue, but for the child’s residence to be the Mother’s sole decision. [ 4 ] The basis for her claim was an increase in her rent and an offer by her boyfriend that she and EH could move in with him in Airdrie. [ 5 ] CH (Father) filed a Response on October 6, 2023, and is opposed to EH relocating to Airdrie.

The Father seeks for shared decision-making to continue, but for the child’s education and health related matters to be the Father’s sole decision.

[ 6 ] The current Consent Final Parenting Order has been in place for almost 6 years and provides a shared parenting regime in a week on/week off schedule. This

schedule works in accordance with the Father’s work

schedule such that EH is in the care of his Father during the week that his Father is not working. [ 7 ] The matter was heard on October 10, 2023, in Family Docket and adjourned to a one-day hearing on November 8, 2023. The Mother and the Father were the only witnesses. Mother’s Position [ 8 ] The Mother’s position is she was the primary parent and due to a major increase in rent she had to move to Airdrie which is within the parameters of the City of Calgary. She further asserted there is a new school directly across from her residence, she is an online student, so she is able to be a stay-at-home mom.

She submitted that EH is with her for eight days and with his Father for six days and he is also with her during the Father’s overtime. When the Father is off work and has EH, he can drive EH to and from school. She further submitted the Father’s home is unstable and the police have been called on a few occasions because of Sarah (who pulled a knife on the Father and ran away) and she was called to pick up EH. She has completed one of three diplomas on herbal medicine.

Living with her, EH will be learning so many valuable life skills and about his culture. [ 9 ] The Mother gave evidence about the rent increase. [ 10 ] Exhibit #1 is an email from her landlord raising rent by $500 per month starting November 1; the lease was up on October 31. She was given three days and discussed this with her boyfriend. He offered for herself and her son to move in and she accepted.

Her further evidence was the rent was $1,050 before increase. [ 11 ] This lease renewal and rent email was sent to the Mother on September 5, 2023, at 9:53 am by John Yuan and indicates the Mother must respond by the end of the week September 8, 2023. [ 12 ] Exhibit #2 is the new rental agreement (between her and her boyfriend) SM signed September 30, 2023, indicating she is moving in for October 2023 and will paying rent of $700 per month.

The Rental Agreement further indicates either party may give one month’s notice to be asked to leave or to leave. [ 13 ] Exhibit #3 are photographs of the house and school taken from the front of the house and the entrance to the school. [ 14 ] Exhibit #4 are various text messages between Mother and EH which the Mother submits to substantiate EH texts her asking to come home. [ 15 ] The Mother sought to enter the March 29, 2018, Consent Final Parenting Order as an Exhibit and the Court advised her it was sufficient for her to direct the Court to the mobility clause in the Order (para 3). [ 16 ] The Mother’s evidence was EH lived with her the majority of time since he was born; and they only went 50/50 during Covid quarantine.

She stated EH prefers to be at my home because it is calm, I can talk calmly with him. He is the only child there as well. EH has offered to write a letter stating his reasons for wanting to be with me. She is an at home Mother – have been an at home Mother for most of the children’s lives.

She has been in therapy for four years and doing really well. [ 17 ] She stated the Father does make a considerable amount of money and could afford to go get a commuter car. [ 18 ] She went on to say she is not asking to change the Order; she is asking that when EH is with her it is in Airdrie and that he goes to school in Airdrie. [ 19 ] She lived in Woodbine and Father lives in Cedarbrae – they are very close. [ 20 ] On cross-examination by Father’s counsel, Mother says she had EH during all the Father’s overtime.

The Father’s total driving time each day would be two and a half to three hours per day; and she would be willing to meet him half-way. She estimated the driving time for EH each day would be one and a half hours and the maximum drive for EH to school from Cedarbrae to Airdrie would be 45 minutes one way on a bad day. [ 21 ] Mother said Father agreed verbally to the move. EH will be residing in Airdrie with her and her new boyfriend whom she has been dating since early spring.

She says she probably gave his information to the Father – his address, the name of the school, where he works and for how long when she told him about the move on September 6 th . [ 22 ] Mother says she looked in Calgary but is not able to afford more than $1050 for rent and her bills come to $500 per month. She had previously lived in Calgary Housing and her rent was $1,365. At that time, she worked and had a boyfriend.

She does not qualify now because she moved in with her boyfriend. [ 23 ] She said the judge said she is allowed to move but she is not allowed to move EH’s school and that the Father would have him until today because “I had no option”. [ 24 ] Mother confirmed she is going to school to be a herbalist and has finished her first diploma. She gave evidence of working before COVID-19 for two years and was on unemployment and received a diploma from Robertson College from 2013 to 2015. [ 25 ] She started online school at Wildrose College in the fall of 2021 and completed the first diploma in August 2022.

She cannot recall how many hours it took. She is working on the second and third diploma – Master Herbalist and then Clinical Herbalist – mostly apprenticeship.

[ 26 ] She spends anywhere from two to four hours per day depending on what she has to get done. The hours will increase when she does her clinical. Her last paycheque was in October 2019 – then she was on stress leave and short-term medical leave. She did not get CERB because she had medical leave and EI. She has been getting child support of $1,408 per month since March 2018. In her Claim the Mother stated she gets $1,500 per month from her Band. [ 27 ] She sees a therapist for PTSD and smokes approximately a gram of marijuana at night.

Not in EH’s presence. [ 28 ] The school EH would go to is Herons Crossing School. She confirmed EH has special needs and the Psychological Assessment Report dated February 21, 2023, was submitted as Exhibit “9”.

The Assessment found that EH is emotional, apprehensive with school and dealing with Mother’s health issues. [ 29 ] She spoke about her gallbladder operation and asking Father to come back sooner but he did not, and EH stayed with the Father’s wife and girls until they had to come get him because he was crying to come home. [ 30 ] The parents agreed they did not want to put EH on ADHD medication, so they give him Lions Mane and Ashwagandha for anxiety. [ 31 ] Mother spoke with MR, a guidance counsellor, about ways to support EH at home such as repetitiveness, going over his homework, helping him with it. [ 32 ] The Mother agrees he needs to attend school regularly for maximum benefit.

The school attendance records were submitted as Exhibit “10”. Mother said she had never seen the printout and did not ask for it. [ 33 ] She gave evidence that EH did not have an Individualized Program Planning (IPP) last year because of a school roof fire after the Assessment was completed. They started implementing the IPP at the end of September. EH has a learning disability code 54. [ 34 ] In Calgary, EH will go to High School in 2025 to Dr. E.P Scarlett Highschool or Henry Wise Wood Highschool. He has played Lacrosse for one season.

Father’s Position [ 35 ] The Father’s written Response and oral evidence during the hearing confirmed EH has been in a shared parenting arrangement since March 2018 and that he pays consistent child support to the Mother of $650 every two weeks ($1,408 per month). He has paid for Lacrosse, $1,500 to $2,000 and for EH’s ADHD testing. [ 36 ] He is opposed to the move to Airdrie as contrary to EH’s best interests including the driving between his home and Airdrie especially during the winter months. The logistics of going to and from Airdrie will impact his parenting time with EH.

The Father is especially concerned with the impact on EH’s education. The parents had a Psychological Assessment completed at the end of February 2023. The recommendations from that assessment are just being implemented by the school now in the fall of 2023 through an IPP . The Father’s evidence is that last year EH missed 40% of school classes mostly when he is in his Mother’s care. (Exhibit “10”) There will be no checks or balances in Airdrie. [ 37 ] The Father is unaware of whether EH has any connections in Airdrie and the only information he has is the Mother’s boyfriend is there.

He gave evidence the Mother had previously talked about moving out of province with a previous boyfriend. The relationship between the Mother and her boyfriend is fairly new and unpredictable and the Father does not feel it should be the basis for the move. [ 38 ] The Father is married and lives in a single-family home in Cedarbrae with his wife and EH has his own room there. [ 39 ] The Father has been working with the school and with EH. He says when EH’s anxiety is bad; he does not want to go to school, and it is up to his parents to get him there because missing school affects his marks.

He knows his parents are involved in something and has been asking when he is going to move. He does not want to let either of them down. [ 40 ] He felt like the Mother was giving him a sales pitch about the move. He does not consider it in EH’s interests to change schools now and again after Grade 9 and with his ADHD it will put a lot of stress on him. He is unaware of any supports in Airdrie, such as a counsellor or a family doctor. He will only have his Mother and her new boyfriend.

He feels the impact of the drive has not been considered. [ 41 ] It would be in EH’s best interests to stay in Calgary for his schooling, his doctor, Don (counsellor), all his tools are here. [ 42 ] He has enrolled him in Lacrosse. Issues and Analysis [ 43 ] There is one child of the relationship, EH, born May 2010. The parents have been sharing the rights and responsibilities of parenting since EH was seven years old. He is now 13 years old. [ 44 ] Prior to November 1, 2023, his Mother lived in Woodbine and his Father lives in Cedarbrae (adjacent communities). EH attends a school in the Southwest of Calgary.

I must determine what parenting plan is in EH’s best interests given the relocation by his Mother to Airdrie.

[ 45 ] The Mother was advised on September 5, 2023, her rent would increase from $1,050 to $1,500 per month commencing November 1, 2023. She brought an application on October 4, 2023, to vary the Consent Final Parenting Order granted on March 29, 2018. [ 46 ] The Mother receives an allowance from her Band in the amount of $1,500 per month and child support from the Father in the amount of $1,408 per month.

Her evidence was her bills are $500 per month. [ 47 ] Despite having sufficient finances to remain in Calgary, the Mother chose to move in with her boyfriend in Airdrie, a man she has been in a relationship with for approximately six months and with whom she has signed a rental agreement that allows him to ask her to move out on one month’s notice. [ 48 ] The home the boyfriend owns is across from the Herons Crossing School.

There was no evidence with respect to this school’s programs or resources that specifically meet EH’s needs. [ 49 ] EH has special needs and his parents have worked hard to ensure EH’s success at school, including having a psycho- educational assessment completed, an IPP put together and implemented at EH’s current school, setting EH up with a counsellor to assist him in dealing with his anxiety and his grief. [ 50 ] The Mother took contrary positions on her move. On the one hand, she asserts the definition of “City of Calgary or surrounding area” includes Airdrie.

On the other hand, she seeks an Order varying paragraph three of the current Order to include Airdrie. [ 51 ] While Airdrie may be close to some suburbs of Calgary in the far North, I find as a fact that Airdrie is not included in the surrounding area of Southwest Calgary where EH has been residing. Accordingly, EH may not be relocated to Airdrie without consent between the parents or a prior Court Order. [ 52 ] I further find that the Father did not consent to EH relocating. [ 53 ] The Supreme Court in Barendregt v.

Grebliunas , 2022 SCC 22 , para 154 , established the best interests of the child must be considered in the context of the unique challenges posed by relocation cases.

In addition to the factors that a court will generally consider when determining the best interests of the child ..., a court should also consider: • the reasons for the relocation; • the impact of the relocation on the child; • the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons; • the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside; • the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and • 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. [ 54 ] Aside from various minor complaints by each parent toward the other, they have been operating in a shared parenting regime for several years.

I say ‘minor complaints’ based on there being no applications by either parent since 2018 to vary the Consent Final Parenting Order. Based on the evidence it appears that EH has the usual complaints to make about his parents when he feels bored or does not like a rule being imposed. This is normal, expected behaviour of a young teenager. In this case, EH’s best interests could be met in either parent’s home. [ 55 ] I turn to the factors I must apply to the relocation.

The reason for the relocation and the impact of the relocation on EH [ 56 ] I do not accept the Mother’s assertion she moved because she could not afford to live in Calgary. Simply put, she moved in with her boyfriend. No evidence was led as to the relationship between EH and the Mother’s boyfriend or the impact on EH of moving in with his Mother’s boyfriend. The change that would have the greatest impact on EH would be changing schools which I will deal with later.

The amount of time spent with EH by each parent and the level of involvement by each parent in EH’s life [ 57 ] Each parent has been highly involved with EH and involved in his life, his education, and his activities. The existence of an order that specifies the geographic area in

which EH is to reside [58] There is an Order specifying EH is to live in Calgary or the surrounding area. As stated previously, given the parents lived inSouthwest Calgary, I find that Airdrie is not included in the geographic area specified by the Oder. The reasonableness of the proposal of the relocating parent tovary the exercise of parenting time, decision makingresponsibility or contact [59] The Mother’s proposals are simply unreasonable.

Her expectation is the Father will inconvenience himself to accommodateher move – specifically, that during his parenting time the Father will drive from Cedarbrae to the school in North Airdrie each morningto drop off EH and then drive back up to Airdrie after school and bring EH back to Cedarbrae. Having EH in a car driving back and forthto school during his parenting time with his Father is unreasonable. Whether each parent has complied with their obligations underfamily law legislation [60] The answer is “yes”. Specifically, the Father has complied with his financial obligations to EH.

The Impact of the Relocation on EH [61] I return to the impact of the relocation on EH. [62] What is of most significance regarding EH is the issues he has been having with school because of his ADHD and anxiety.Both parents took appropriate steps to have EH assessed and to implement the recommendations with the IPP being implemented startingin October of this school year. [63] Father’s counsel directed me to Piper, Jr. v. Hare, 2021 ONSC 2139. It is instructive on the issue of determining what schoola child would attend.

Justice Tobin adopted the general principles to be considered in deciding the school issue when parents disagree from the decision of Audet J. in Thomas v. Osika, 2018 ONSC 2712, 13 R.F.L. (18th) 191. At para 37 she opined: Choice of school The decision as to the choice of school that a child should attend, when the parents disagree, is ultimately a matter of judicial discretion.However, a number of general principles have emerged from the caselaw to assist the decision-maker in making the decision in thechild's best interests. They can be summarized as follows: a. Sub-section 28(1)(

b) of the Children's Law Reform Act specifically empowers the court to determine any matter incidental to custodyrights. The issue of a child's enrollment in a school program must be considered as being incidental to or ancillary to the rights of custody(Deschenes v. Medwayosh, 2016 ONCJ 567(Ont. C.J.)); b. It is implicit that a parent's plan for the child's education, and his or her capacity and commitment to carry out the plan are importantelements affecting a child's best interests.

In developing a child's educational plan, the unique needs, circumstances, aptitudes andattributes of the child, must be taken into account (Bandas v. Demirdache, 2013 ONCJ 679(Ont. C.J.)); c. When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and thedegree to which the parent can participate in the child's educational program (Deschenes v. Medwayosh, 2016 ONCJ 567(Ont. C.J.)); d. The emphasis must be placed on the interests of the child, and not on the interests or rights of the parents (Gordon v. Goertz, (SCC), [1996] S.C.J.

No. 52 (S.C.C.); e. The importance of a school placement or educational program will promote and maintain a child's cultural and linguistic heritage(Perron v. Perron, 2012 ONCA 811(Ont. C.A.); f. Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on thestability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; wherethe child was born and raised; whether a move will mean new child care providers or other unsettling features (Askalan v. Taleb, 2012ONSC 4746(Ont.

S.C.J.); g. The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respectto schooling (Askalan v. Taleb, 2012 ONSC 4746(Ont. S.C.J.); h. Any problems with the proposed schools will be considered (Askalan v. Taleb, 2012 ONSC 4746(Ont. S.C.J.); i. A decision as to the choice of school should be made on its own merits and based, in part, on the resources that each school offered in

relation to a child's needs, rather than on their proximity to the residence of one parent or the other, or the convenience that his attendance at the nearest school would entail (Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.)); j. Third party ranking systems, such as the Fraser Institute's, should not factor into a Court's decision. These systems of ranking do not take into consideration the best interest of the particular child in a family law context (Wilson v. Wilson, 2015 ONSC 479 (Ont. S.C.J.)); k.

If an aspect of a child's life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that a change of schools is in the child's best interests (Perron v. Perron, 2012 ONCA 811 (Ont. C.A.); l. Custodial parents should be entrusted with making the decision as to which school children should attend.

When a sole custodial parent has always acted in the best interest of a child, there should be no reason to doubt that this parent will act in the best interest of the child when deciding on a school (Adams v. Adams, 2016 ONCJ 431 (Ont. C.J.)); m. Those cases are very fact-driven. The courts are not pronouncing on what is best for all children in a general sense but rather deciding what is in the best interests of this child before the court (Deschenes v. Medwayosh, 2016 ONCJ 567 (Ont. C.J.)). [ 64 ] Of those principles, I find the following most applicable to EH’s needs and circumstances: (

b) It is implicit that a parent’s plan for the child’s education, and his or her capacity and commitment to carry out the plan are important elements affecting a child’s best interests. In developing a child’s educational plan, the unique needs, circumstances, aptitudes, and attributes of the child, must be taken into account; (

c) When considering school placement, one factor to be considered is the ability of the parent to assist the child with homework and the degree to which the parent can participate in the child’s educational program; (

d) The emphasis must be placed on the best interests of the child, and not on the interests or rights of the parents; (

f) Factors which may be taken into account by the court in determining the best interests of the child include assessing any impact on the stability of the child. This may include examining whether there is any prospect of one of the parties moving in the near future; where the child was born and raised; whether a move will mean new child care providers or other unsettling features; (

g) The court will also look to any decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling; (

k) If an aspect of a child’s life, such as school placement, is to be disrupted by an order of the court, there must be good reason for the court to do so. Thus, before a court will order a child to transfer schools, there must be convincing evidence that change of schools is in the child’s best interests. [ 65 ] I find that EH’s specific and special educational needs would be impacted by changing schools. His current school has been working with both EH and his parents in determining the appropriate Individual Plan for his success at school.

His Father works with EH with his homework and takes steps to ensure his schoolwork is done. His Father takes him to school and ensures his daily attendance. The school attendance report (Exhibit “10”) does support the Father’s position the Mother does not get EH to school regularly.

Regular attendance at school will have an impact on EH’s success and his grades. [ 66 ] I find the plan to move EH to Herons Crossing School was not based on EH’s needs and circumstances and the Mother has not considered the impact on EH on changing schools. [ 67 ] I am not convinced by the evidence before me that changing EH’s school is in his best interests.

EH will remain in his current school until he goes into High School. [ 68 ] Given my decision that EH will remain in school in Calgary and my finding that it is not in EH’s best interests to be transported between Airdrie and Cedarbrae each day, the current shared parenting

schedule is no longer in EH’s best interests. [ 69 ] EH will continue to reside in Calgary in the primary care of his Father. Given EH and his Mother have a good relationship, he should spend as much time as possible in the care of his Mother when he is not in school. [ 70 ] The Final Parenting Order shall be prepared considering the school calendar for EH’s current school and the Father’s work

schedule and should provide for EH to be in the care of his Mother for three out of every four weekends, the School Break in February, and the Spring Break if the Father is working, one-half of the Christmas school break and alternating weeks during the summer school holidays. The Father has indicated he is working over Christmas this year so EH will be in the care of his Mother from after school on December 22, 2023, until December 27, 2023. Heard on the 8 th day of November, 2023. Dated at the City of Calgary, Alberta this 14 th day of December, 2023.

Appearances: Self Represented for the Applicant S. Page for the Respondent M.J. Shaften A Justice of the Alberta Court of Justice