MMA v EJK, 2023 ABKB 512

Court of King’s Bench of Alberta Citation: MMA v EJK, 2023 ABKB 512 Date: 20230907 Docket: FL01 28321 Registry: Calgary Between: MMA Applicant - and - EJK Respondent 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 Lisa A. Silver _______________________________________________________ Introduction and Background [ 1 ] This is an application brought by MMA [the mother] to vary previous parenting orders and relocate the two children of the marriage from Calgary to Fort McMurray. EJK [the father] opposes the application.

[ 2 ] The mother and the father were married in 2008. The son, HK, was born the following year on March 25, 2009. He is now almost fourteen and a half years of age. A daughter, SK, was born December 17, 2010. She is now twelve years and eight months old. The parents separated in April of 2016 and were divorced on May 16, 2018. [ 3 ] For reasons to follow, based on the best interests of the children, I am allowing the application in part. I grant the application to relocate HK to Fort McMurray with the mother. I dismiss the application as it applies to SK, who will remain in Calgary with the father.

Primary Care and Parental Arrangements [ 4 ] Since July 25, 2017, there have been ten court orders issued that have granted, varied, or touched upon parenting arrangements. [ 5 ] Justice Mah granted the first order on July 25, 2017, which gave the mother primary care of the children with parenting access to the father. [ 6 ] On November 26, 2018, Justice K. Nixon issued a consent order [Nixon Order] changing primary care to the father when the mother moved to Ontario. [ 7 ] The Nixon Order gave the mother access to the children during school holidays and for at least one month over the summer.

The parties could agree to additional time. [ 8 ] Notably, the Nixon Order prohibited the parents from making derogatory remarks about one another or their families or their friends to or in front of the children. The parents were also prohibited from discussing adult matters with the children. [ 9 ] On December 20, 2021, the mother returned to Alberta, moving with her mother and other family members to Fort McMurray.

Within months, on April 28, 2022, the father brought a child support application, the outcome of which required the mother to pay child support to the father. [ 10 ] About six weeks later, on June 6, 2022, an altercation occurred between the son, HK, who was then thirteen years of age and the father. The police were called, although no charges were laid.

HK left the father’s home to live with either his paternal grandmother or aunt. [ 11 ] In response, the mother brought an urgent parenting application on June 9, 2022 before Justice Marion who granted a without prejudice interim variation of the Nixon Order [Marion Order]. [ 12 ] The Marion Order changed primary care of HK from the father to the father’s mother or sister until the matter was fully heard on June 20, 2022. In the interim, the father was prohibited from contacting HK.

Counsel for each child were also appointed. [ 13 ] The daughter, SK, remained in the primary care of the father pursuant to the Nixon Order. [ 14 ] The Eamon Order of June 20, 2022 merely extended the Marion Order subject to a week in which HK would stay with the mother in Fort McMurray. [ 15 ] Finally, on July 20, 2022, Justice Hollins issued two separate orders.

One order was procedural in nature to outline the process for an oral hearing to determine parenting and relocation of the children [Hollins Order #1]. [ 16 ] The second order or Hollins Order #2 confirmed HK would continue to live with either his paternal grandmother or aunt until further order of the court. The Hollins Order #2 modified the Nixon Order to the extent it was necessary to facilitate this change. The father was restricted from contact with HK until further order of the court. The father was allowed to contact the grandmother or aunt regarding HK’s health and well-being.

The Order permitted limited access of the father to HK, if HK “initiates such contact via telephone or video call, which shall only take place” at the grandmother’s discretion. [ 17 ] The interim living arrangement for HK continued for over a year. HK split his time with his grandmother and aunt who both lived in Chestermere, Alberta. HK continued to go to school in Calgary. [ 18 ] Since July 28, 2023, HK has been living with his father in Calgary. [ 19 ] The mother has spent holiday time with the children since 2018 during the year and over the summer months.

She has visited the children in Calgary several times. Preliminary Comments [ 20 ] Family relationships are complicated, particularly when the parents are divorced and there is a breakdown of the family unit. In this case, there are many factors and circumstances behind this breakdown that involve shifting family dynamics and dysfunctional relationships. [ 21 ] I find these issues are exacerbated by an inability of the parents to effectively cooperate in the upbringing of their children. Each mistrusts the other. Neither parent will believe or accept information coming from the other.

This adversarial and acrimonious relationship is hurtful to the children who find themselves caught in this atmosphere of anger and distrust. I do not accept the position of either the mother or the father that the other parent is the sole source of the unhealthy family dynamics. The reality is much more

complex. [22] I am mindful the outcome of this application will impact the lives of everyone in this family. Relocation applications aredifficult because they suggest change. It is hard to embrace change and even harder to be required to do so. I am hopeful, however, thatthe changes contemplated here will give this family a chance to reflect and make real efforts at repairing their relationships with theirchildren by parenting their children in a healthy and supportive way.

Although the outcome of this application will not repair the parent’sacrimonious relationship, it will at least make it clear to them that their attitude towards one another is negatively impacting the childrenthey both love. [23] It is in this context that I will assess the evidence and apply the legal principles. The Relevant Legislation and Applicable Legal Principles [24] The Divorce Act [Act] governs relocation of children of a marriage from their usual and ordinary residence to anotherresidence outside of their home location.

The sole determinant of relocation is the best interests of the child based on the factors foundunder s. 16(3) of the Divorce Act. According to s. 16(2), the primary concern in considering all these factors is the “child’s physical,emotional, and psychological safety, security, and well-being.” I must also consider the additional factors applicable to relocationapplications under s. 16.92. [25] Case law has considered and interpreted these legislative factors.

The governing cases from the Supreme Court of Canada onthe issue are Gordon v Goertz, (SCC), [1996] 2 SCR 27 [Gordan] and Barendregt v Grebliunas, 2022 SCC 22[Barendregt], which modifies the Gordon decision in light of amendments to the Divorce Act. For instance, s. 16.92, which waspreviously mentioned, is part of the recent amendments to the Act. [26] It is important to note that this determination of whether relocation is in the best interests of the child is “never an easy task”:Barendregt at para 97.

As Justice Karakatsanis explained in Barendregt, a judge in a relocation application “has the onerous task ofdetermining a child’s best interests in the tangle of competing benefits and detriments posed by either outcome”: Barendregt at para 99.In the case before me, this is particularly true considering the high conflict nature of the case involving children who are transitioninginto adolescence, have behavioural concerns, and mental wellness issues.

In making my decision, I am mindful that I cannot predict thefuture for these children, but I can, based on the evidence, make an informed decision based on what seems likely, at this moment, to bein the child’s best interests: Barendregt at para 99. [27] The overall question in this case asks “what is in the best interests of the child in all the circumstances, old as well as new”:Mezo v Watts, 2021 ABCA 76 at para 18 [Mezo].

To answer this question, I will compare the scenario of the children living in FortMcMurray with the mother versus the scenario of the children living in Calgary with the father to determine which scenario is in thechild’s best interests. In making this comparison, I will also consider what it would look like for each child to be living in either citywithout the other sibling. Counsel for the mother offered an alternate scenario whereby SK lives in Fort McMurray with her, and HKlives in Calgary with the father.

I will also consider another alternative, which is HK living with the mother in Fort McMurray while SKlives with the father in Calgary. [28] It is important to compare these scenarios and look at how the absence or diminishment of the presence of either parent in thechildren’s lives impact their best interests: Mezo at paras 21-22. In this way the ultimate inquiry is “future-looking” requiring anassessment of the impact on the children individually should they stay or go or should one child stay and the other go: Scott v MacLean,2020 ABCA 173 at para 8, 10-14 [Scott].

This requires a choice to be made as to which situation best serves the child’s interests or, saiddifferently, “which situation is better for, or less detrimental to, the well-being of the children”: Scott at para 15. [29] Before turning to the factors to be assessed in determining the children’s best interests, I will deal with two preliminary issues:the threshold inquiry from Gordon and the burden of proof. [30] Where there is a previous parenting order in place, Gordon requires the judge to first consider whether there is a materialchange in circumstances to warrant a renewed determination of the child’s best interests: Barendregt at para 105.

According to JusticeKarakatsanis in Barendregt, typically relocation would be a material change in circumstances. I find in this case, there is a materialchange in circumstances permitting a re-evaluation of the best interests of the children. This is particularly so for HK, who is still subjectto the Hollins Order #2 requiring him to live with his grandmother or aunt on an interim basis. He is now with the father and requiresfinality as to which parent he will be living with going forward.

As for SK, although she has been living with her father continuouslysince the Nixon Order in 2018, the order recognized that the mother may return to the jurisdiction and apply for primary parenting. Inany event, I am satisfied that the first stage of the Gordon inquiry is fulfilled. [31] The new amendments to the Act clarified the burden of proof in relocation applications in certain circumstances. In this case,in accordance with s. 16.93 of the Act, the burden of proof rests on both parents.

The standard of proof is on a balance of probabilities. [32] Turning to the numerous factors to be assessed in determining the best interests of the children in this relocation application,in Campbell, v Guignard, 2023 ABKB 217 [Campbell], Justice Grosse grouped the various factors together thematically fororganizational purposes only.

I adopt and follow this organizational structure while recognizing that there is overlap between these threegroupings and, as Justice Grosse indicated at paragraph 15 of Campbell, “the ultimate analysis is wholistic and not formulaic.” [33] For brevity, I will not list the factors considered under each group. Instead, I will analyze each factor in turn and the evidencepertinent to each factor. To be clear I have considered all the affidavit evidence which forms part of the record of proceedings pursuant tothe Hollins Order #1 and the Silver Order of July 26, 2023.

I have also considered the entirety of the oral hearing evidence including thetestimony of the mother, the father, the paternal grandmother, and the paternal aunt. [34] I have also considered the information contained in the Joint Exhibit Book filed as Exhibit One to these proceedings. That

information includes the following for HK: his medical notes (approximately 221 pages), police occurrence reports, psycho-educational assessment report, ADHD ratings completed by the father, the mother, and school authorities, plus other school records, such as HK’s grade assessments.

For SK, the information includes the following: school records, emails between the parents and the school, SK’s school safety plan, suspension documents, student leave documents, school counselling report, and hospital record. [ 35 ] Finally, I have considered the position of the mother and father particularly the submissions of the mother’s counsel and the submissions of the father made on his own behalf. I have also considered the information and final submissions provided by counsel for HK and counsel for SK, who have taken on instructional advocacy roles on behalf of their clients.

Preliminary Comments on the Assessment of the Evidence [ 36 ] In the oral hearing, four witnesses gave testimony. The mother and father were cross examined on their affidavit evidence, which they submitted after the June 6, 2022 incident. Counsel for the mother was given an opportunity to ask the mother questions in direct examination for the purpose of updating the evidence since the latest affidavit of the mother sworn on August 21, 2023.

As the father was unrepresented, I allowed the father to give updated evidence as well. [ 37 ] The father’s mother or the grandmother of the two children, and the father’s sister or the aunt of the two children also testified at the oral hearing as third-party witnesses. In my view, this means that these witnesses are not the actual parties to the application. It does not mean these witnesses are arms-length. In my view, they are witnesses called by the mother to support her application. Indeed, counsel for the mother conducted the direct examination of both witnesses.

Furthermore, both witnesses provided statements and text message information to support the mother’s June 17, 2022 affidavit. [ 38 ] The evidence of the grandmother and the aunt is relevant to the application because, in accordance with previous court orders, HK, since June 7 of 2022 until July 28, 2023 lived with either the grandmother or the aunt. These witnesses were able to give direct observations of HK during his time with them.

Even before June of 2023, both the grandmother and the aunt were a part of the children’s life and therefore their evidence on that relationship is relevant. [ 39 ] Counsel for the mother also asked the grandmother and the aunt to relate information about the father. It is clear on the evidence that both witnesses are estranged from the father. The breakdown in these familial relationships is deep-seated and emotional. I cannot and will not make a finding on why this happened or who is at fault.

Suffice to say, this ill feeling between the grandmother, the aunt, and the father does influence the grandmother and aunt’s evidence as it relates to the father’s ability to parent. I apply the same comments to the father’s evidence regarding his mother and sister. His personal history with them also affects his evidence when he speaks of them. [ 40 ] Both the grandmother and the aunt testified that it was in the best interests of the children to be with the mother.

The grandmother qualified her position when she said it was not in the children’s best interests to be with the father “at this time,” leaving open the possibility that through counselling and other supports the father can be a part of the children’s upbringing in the future. The grandmother spoke of the father building up to a deeper relationship with his son. In her view, HK returning to the father’s care happened “too fast.” This qualification is well taken in my view. [ 41 ] However, what is in the best interests of the children involves a broader view of the evidence considering various factors.

I accept that the grandmother and the aunt sincerely want what is best for the children. Their love, support, and concern for them is evident. But I am also mindful that their view, to a certain extent, is impacted by their acrimonious relationship with the father and the supportive and positive relationship they have with the mother. [ 42 ] I have already mentioned the high conflict between the parents. I will be mindful of this when assessing their evidence in the context of the best interests of the children as well.

Applying the Factors to the Evidence Factors Focusing on the Children, Their History and Relationships [ 43 ] There are twelve factors to consider under this group: Campbell , para 16 . I will assess the evidence under each of these factors. 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. [ 44 ] Both children are either teenagers or entering into their teenage years. HK is fourteen and a half years of age and in grade 8. SK is twelve and a half years of age.

She is in grade 7 and attends a different junior high than her brother. [ 45 ] Counsel for SK describes her as a bright and articulate youth. Overall, SK is strong academically but since January of 2023, she has been experiencing social problems with some of her peer group both at school and online. She also was acting disrespectful and disruptive in some classes. [ 46 ] In early January of 2023, SK was suspended from school for two days after she led a group of students to another student’s home for an aggressive purpose. This arose out of prior conflict between SK and the student.

By March, it was clear SK was still acting inappropriately at school and online. She took a leave from school from March 21 to March 24. On March 27, 2023, the father took SK to the hospital for symptoms consistent with severe anxiety. At the time, the hospital was not concerned with self-harm. However, during the oral hearing, SK’s counsel advised that SK admitted to self-harm by superficially cutting her leg. In April of 2023, the school created

a safety plan for SK. She started to receive counselling through the school’s psychological services to assist SK in labelling her emotions and other stress management techniques. The report suggested SK was feeling overwhelmed at school. [ 47 ] HK’s counsel describes HK as friendly and polite, although not without problems. HK was diagnosed with ADHD in October of 2019 when he was ten years of age. I reviewed over two hundred pages of medical notes on HK. The primary health professional treating HK for his ADHD is Dr. Bulat. Although I will not reference all the information from Dr.

Bulat’s notes, these notes depict a child who has significant issues including anxiety, depression, headaches, stomach aches, and sleep problems. Dr. Bulat makes it clear in these notes that the ADHD diagnosis was supported and documented through attention difficulties at school including high ADHD ratings from HK’s teachers. [ 48 ] Initially, Dr. Bulat found HK exhibited qualities of ODD, also known as oppositional defiance disorder. The father related several episodes of misconduct and defiance at home. These episodes escalated for the father from June of 2021. Dr.

Bulat removed the ODD as part of HK’s diagnosis after speaking to the mother on April 13, 2021. The mother was concerned the diagnosis reflected the behaviour the father was observing at home, which was not observed at school. [ 49 ] Both HK and SK have attendance issues at school. As discussed in Dr. Bulat’s notes from 2019 to the present, attendance has been a continuing issue with HK, who finds it hard to wake in the morning. In HK’s academic improvement plan from January 2023, attendance was an issue detracting from HK’s success.

In fact, HK’s grade assessments from the school year of 2022 to 2023, showed failing grades in many areas. Part of the difficulty was HK’s enrollment in French immersion. HK did not like the French program and attendance and grades decreased as a result. However, HK’s grades in non-French based programs were also problematic. SK’s attendance in grade 7 showed she missed classes as well, although there was evidence in the school reports that the issue was SK skipping classes. [ 50 ] HK and SK’s relationship has been difficult and, at times, physically and verbally aggressive. In Dr. Bulat’s notes, the Dr.

Bulat cited HK’s concerns with his sister. HK told Dr. Bulat in the June 9, 2021 visit that HK was “stressed at home” and the father and the sister were the issue. HK was angry that his sister was treated differently at home. HK told Dr. Bulat that he wanted “less chores and less rules” at home and for his sister to be treated like him. [ 51 ] At the time of the oral hearing, both children have been living together at the father’s home for approximately a month. SK called the police after arguments with HK, indicating that HK was physically violent and threatening.

After one such argument, SK left the home to stay with a friend overnight. HK denies any violence. [ 52 ] The teenage years can be challenging for both the adolescent, who is experiencing emotional, physical, and psychological change, and the parent, who must adapt to these changes. In short teenagers are transitioning from child to adult and the subsequent growing pains impact a child’s health and wellbeing in differing ways. It is also a time when teenagers begin to use their voice, to question information and sometimes parental authority.

It is especially important for parents to be mindful of a teenager’s hope and fears, and to provide emotional support to them without stifling their creativity and curiosity. This is an age where social relationships with peers do matter. It is a time where they are transitioning to greater independence yet still require the guidance of a parental figure: se e General Comment No. 20 on the implementation of the rights of the child during adolescence. 6 December 2016. UN Doc. CRC/C/GC/20; Stamm, L., & Striek, J. (2017).

Children’s rights during adolescence: General Comment No. 20 of the UN Committee on the Rights of the Child. (Information / Deutsches Institut für Menschenrechte, 9). Berlin: Deutsches Institut für Menschenrechte . It is in this context that the needs of HK and SK must be assessed. The history of care for the child [ 53 ] As indicated earlier, both children were in primary care of the mother from 2016, when the parents separated, to December, 2018, when the mother left the jurisdiction.

Thereafter, HK was in care of the father until the June 6, 2022 incident after which HK was placed in the care of his grandmother and aunt. Although this was to be a short-term arrangement until the relocation hearing, it turned into a thirteen month stay. HK lived with his grandmother from June 2022 until February 2023, and thereafter with his aunt until HK returned to his father’s home on July 28, 2023. [ 54 ] SK has lived with the father and the father’s partner, and her two half-sisters since November of 2018. She spent holidays with her mother but at times SK would stop communicating with the mother.

The child’s cultural, linguistic, religious and spiritual upbringing and heritage [ 55 ] The children’s religious upbringing is in the Muslim Faith. Both parents are willing and able to expose the children to these religious practices. In the past they have also shared holiday time with the children. The child’s views and preferences, to the extent that it is appropriate to ascertain them [ 56 ] Counsel for both children were able to give the court helpful information relating to the children and disclosed the children’s views and preferences.

Both counsel cross examined witnesses and made submissions. [ 57 ] Counsel for the mother submitted the views and preferences of the children should receive diminished weight mainly because the children changed their views and preferences prior to the hearing. At the time of the pretrial conference on July 27, 2023, SK changed her preference to live with her father to wanting to live with the mother. At the time of this change, SK was staying with her mother.

Then by the time of the oral hearing in August, when she was no longer with the mother, SK reverted to her original preference to stay with her father. [ 58 ] Counsel also suggested that SK’s preferences should receive less weight because counsel for SK did not have in-person meetings with the child. Counsel for SK, an experienced lawyer, explained that many of the meetings with SK were done over Zoom, where they met face to face albeit digitally. Counsel was satisfied no one else was in the room with SK at the time. I accept this and find

that counsel for SK is accurately and adequately expressing the views and preferences of SK. [ 59 ] HK also lately changed his preference to live with the mother. This change happened while HK was in the father’s care. Counsel for the mother referenced gifts the father gave to HK that could have influenced HK’s views such as a gaming computer, and a new desk and mattress for HK’s room at his father’s house. [ 60 ] Allowing the children to voice their views and preferences is an important part of the child-centric focus of the best interests inquiry.

It also gives the children confidence that their thoughts and feelings are considered by the decision maker. It gives the children a voice but not a choice. Although, their views and preferences are part of the determination, it is merely one factor of many that must be assessed and considered. In the end, I am tasked with the onerous responsibility to decide parenting arrangements and relocation considering the best interests of the children. [ 61 ] In assessing these preferences, I will take into account that the preferences have changed and, in the case of SK, changed back again.

However, I must be careful not to discard or disregard the children’s views because of this. The children, as discussed earlier, are adolescents going through emotional and physical changes. Moreover, they are going through these changes within the acrimonious relationship between the parents. I find the children are caught between the two parents. This impacts their ability to articulate and share their views and preferences regarding each parent. [ 62 ] I also appreciate that both children’s views are influenced by reasons that go beyond the evidence.

To be clear, both children want each parent to be part of their lives in a meaningful way. Of course, although unrealistic, they would rather see both parents living in the same city to facilitate their access to each parent. This means the primary caregiver for the children must permit, facilitate, and encourage such access to ensure each child can enjoy a positive and loving relationship with the access parent. [ 63 ] I am concerned with the mother’s influence when SK changed her preference for primary care from father to mother.

I do not however find that this change was an intentional interference by the mother. It is natural that SK would have strong feelings of attachment for her mother when she has benefited from sustained contact with her.

Similarly, I do not find any undue influence in SK’s present preference to be with her father considering she has been living with the father, her father’s partner, and her half-sisters for a considerable time. [ 64 ] Counsel for the mother relied on a letter written by SK which was filed as an exhibit to the father’s affidavit of June 14, 2022 as proof of undue influence and interference by the father. Counsel maintained the letter was too sophisticated and well written to be authored by SK. SK’s position as submitted by her counsel is that the letter was written by her.

The mother testified the letter was not written by SK because the letter used large words the mother did not believe SK knew such as “false allegations.” She also testified that SK would not have direct knowledge of some of the information found in the letter. The father denied under cross examination that he wrote or edited the letter. [ 65 ] I have reviewed the letter. SK is an intelligent child who does well academically. Considering this, I find that overall, the tone of the letter is age appropriate and consistent with a mature pre-teen who has been amid a major family dispute.

I do agree that some of the information was from other sources, including the father, about what happened the night of June 6, 2022. However, in the letter, SK is not suggesting that she was present throughout the entire event. Words like “false allegation” could also have been overheard by SK. On a balance of probabilities, I find SK wrote the letter. [ 66 ] I am concerned with HK’s change of preference to the father. I asked HK’s counsel if the change was not so much about being with the father than it was being in Calgary where his friends live and where his school is located.

I recall the evidence of the grandmother and aunt who drove HK into Calgary to facilitate his schooling and friendships. Chestermere is not far from Calgary, but it is far enough when you are a teenager who wants to be close to friends and have easy access to school. [ 67 ] Counsel for HK had a different view of this change of preference. Counsel pointed to the recent road trip taken by the father and HK over the summer. During that time, HK was able to bond with his father. HK’s preferences came out of that happy time.

I accept this, but I raise the further concern that spending a holiday with a parent is not the same as living with a parent on a daily full-time basis. I note that since HK has been in the father’s care this past month, arguments and behavioural issues have arisen, not just between HK and SK but between HK and the father as well. [ 68 ] Considering my comments above, I do give weight to SK’s views and preferences based on her age and maturity. SK has been residing with the father since November 26, 2018. She has a relationship with the father’s new family, particularly her half-sisters.

Although SK has been experiencing anxiety and mental health issues since January of 2023, in her school safety plan of April 3, 2023, she indicates that she can trust her family. The father also testified to how he discussed SK’s recently revealed self-harm actions with her. Counsel for the mother suggested that SK going to her friend’s house after an argument with the brother is a sign that SK is not safe with the father. I find that SK’s behaviour was directed more to HK than the father. Moreover, the father was deeply concerned with SK at the time.

From the evidence I find SK’s views and preferences are consistent with her physical, emotional, psychological safety, security, and well-being. I find SK’s present views and preferences are authentic and arising from her perspective. [ 69 ] In terms of HK, I give diminished weight to his views and perspectives on the basis that the change in those views came only recently after a brief holiday with the father. Moreover, HK has a connection to Calgary and his school that may be motivating his views.

I am not convinced that HK is articulating his views and preferences because he wants to have his father as the primary caregiver or because he simply wants to stay in Calgary. Moreover, the evidence is that HK and the father have resumed arguing with one another. The father has complained about the HK’s behaviour. From the evidence I do not find HK’s views and preferences, given his age and maturity, to be wholly consistent with his physical, emotional, psychological safety, security, and well-being. 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

[ 70 ] This factor assesses relationships each child has with significant people in their lives. These include the mother and the father, the extended families of each including grandparents, uncles, aunts and cousins, the father’s current partner and the two children of that relationship. [ 71 ] The assessment is based on the nature, strength, and stability of those relationships in the context of the child’s physical, emotional, psychological safety, security and wellbeing. The nature of the relationship is concerned with the inherent features of the relationship.

The strength of the relationship involves the bonds between the child and the significant person and is a qualitative analysis. Stability of the relationship overlaps with the nature and strength of the relationship but involves how secure, steady, and lasting the relationship is between the child and the significant person. [ 72 ] SK has been in the primary care of the father since November 26, 2018. At that time, she was living with her father, her father’s partner, and her brother, HK. She visited her mother over holidays and part of the summer months.

She enjoyed contact with her mother and father’s family to a certain extent considering the mother’s family was not in Calgary. Up to the June 6, 2022 incident, I find that for the most part SK has a positive and loving relationship with these significant people. [ 73 ] I do note, and I will be discussing further, there was and still is friction between SK and HK. I also heard evidence of tension in the relationship between SK and the father’s partner. The mother testified that SK was concerned with the arguments between the father and the partner.

However, as noted already in this decision, SK in her school safety plan spoke of trusting her family. Moreover, she has a close relationship with her half-sisters, who are now four years of age and eight months old. In fact, she asked to cut short her vacation with her mother in Fort McMurray because she missed them. There was also evidence of her connection to the paternal side of the family who live in Chestermere. On visits with her mother, she has spent time with that side of the family as well. [ 74 ] After June 6, 2022, the family dynamics changed. HK left the father’s home where SK was living.

There was evidence that the relationship between HK and SK is also tumultuous as confirmed by the incidents occurring in August of 2023 when HK returned to the father’s home. The father’s relationship with his family also impacted the connection between SK and her extended family, although I heard evidence that she still has a good relationship with them. [ 75 ] The mother testified that over spring break in March of 2023, SK blocked the mother from her phone. The mother maintained that this was due to the father’s influence.

I note however, this was a time when SK was having anxiety and other difficulties at school. There is no evidence, other than the mother’s opinion, that the father was the cause of this behaviour. Additionally, SK later reached out to her mother in early July of 2023 and was able to spend significant time with her. The father did not impede this access and by all accounts it was a successful visit. I find therefore SK has a positive and loving relationship with her mother, which naturally strengthens when she is with her mother. [ 76 ] However, SK did not disclose her self-harm directly to the mother.

SK did have a conversation about her actions with the father. Again, the nature, strength, and stability of the relationship with the mother will naturally be of a different quality and appearance than with the father whom she lives with. [ 77 ] HK’s relationship with his significant people is unsurprisingly different than his sister’s experiences. HK and the father have long-standing difficulties as heard in the evidence and as commented on by Dr. Bulat in his medical notes.

In the months leading up to the June 6, 2022 incident, the father was reaching out to a variety of supports to help him with his relationship with HK. He described HK as aggressive, defiant, and out of control. In complete contrast, the mother indicates that she sees none of these problems. She was cross-examined about some inappropriate behaviour of HK with his grandmother and cousins, but this was characterized as typical teen behaviour. School records show that HK often has attention problems connected with his ADHD but is usually otherwise respectful. He is introverted at school.

There is however documented aggression with another child at school that was serious enough to warrant the intervention of the School Resource Officer. [ 78 ] Due to the events of June 6, 2022, HK’s relationship with his father was non-existent. The court order prohibited the father from directly initiating contact with HK. This interim situation was likely never contemplated to go on as long as it did. In any event, HK did contact the father and very quickly thereafter left the aunt’s home to reside with the father.

Although HK and the father enjoyed a successful holiday together once back and living with the father, the relationship reverted to a tumultuous and uneasy one. The break in their relationship did not change the increasingly difficult one HK and the father experienced before HK left the home. [ 79 ] HK and SK’s relationship is marked with verbal and physical interactions. Interestingly, Dr. Bulat in his notes from his many interviews and impressions of HK, indicated that HK feels SK is favoured by the father.

HK has expressed anger and feelings of unfairness regarding the relationship between the sister and the father. These feelings are long-standing and remain unresolved to the detriment of his relationship with SK. [ 80 ] There was evidence from the grandmother that the father’s partner also has difficulty relating to HK. On the night of the June 6, 2022 incident the partner spoke in an inappropriate manner to HK. I accept that those events were highly charged and upsetting for everyone.

Although I cannot find on all the evidence that the partner acts in this manner all the time, the father did complain in his affidavit evidence that HK is abusive towards his partner, and there were safety concerns. [ 81 ] The mother on the other hand sees no real issue with HK. They text continually with one another and speak on the phone. She visited him several times over the year HK was living with the grandmother and the aunt. She came to Calgary and stayed with HK when he needed her. I find the mother and HK have a close relationship.

Similarly, the grandmother and aunt, who cared for HK for almost thirteen months also have a close relationship with HK. [ 82 ] However, the evidence seems to indicate that the mother is not always willing or able to exert appropriate parental direction or control over HK. While the father on the evidence is too restrictive, particularly when it comes to access to technology, the mother, is too yielding.

There was evidence of house rules when HK lives with her, but I am concerned with her dropping off HK at the father’s house, contrary to the court order, simply because that is what HK wanted. [ 83 ] The above assessment of the nature, strength and stability of the relationships indicates there are problems with HK’s

relationship with his father, his sister, and at times, the mother. These difficulties impact HK’s physical, emotional, psychological safety, security, and wellbeing. [ 84 ] The father suggested the mother has created an atmosphere of parental alienation. Parental alienation is a term used to describe the situation where a child is resisting contact with one parent due to the attitudes and behaviour of the other parent: MLS v NED , 2017 SKQB 183 at para 171 . I find this is not the case. HK has a “natural affinity” towards his mother.

Moreover, there is documented friction and tension between HK and the father unconnected to the mother. 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 [ 85 ] Both parents were asked by counsel in cross examination to give their views of the other parent’s access to the children if they would be the designated primary caregiver. The mother’s response was to essentially repeat the parenting arrangement that was in place before 2018 when she was the primary caregiver.

Notably the father, called the mother’s role “fundamental” to the lives of the children. This shows the father has some insight in the vitally important role the mother must have in the children’s lives for their sense of emotional and psychological security, happiness and well-being. However, the father also recommended the mother return to Calgary to play this fundamental role. I find that position is unrealistic and unfair. [ 86 ] In my view, there is great benefit to SK to continue to develop and maintain a relationship with both parents.

For HK, there is great benefit for his continued relationship with his parents but, on the evidence, I find there is work to be done when it comes to HK’s relationship with the father. 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 [ 87 ] The Barendregt decision speaks of the “parenting time factor” at paragraph 154. This factor must be viewed in the context of the best interests of the child.

There is no presumption in favour of either parents even though SK has resided continually in the primary care of the father since 2018 and even though HK lived for the thirteen months in the care of the grandmother and the aunt. I do not find that the numeric quantity of time spent changes the determination I must do. [ 88 ] The level of involvement of each parent is important to discuss. The father when asked if he took any accountability for the issues HK has experienced testified to his “regret” that he did not spend enough alone time with his son.

This regret was tempered by his belief he was forced to make this choice because he took on the mother’s debts of the marriage. In the same vein, the mother testified she also regrets her time away from her children, but she was forced to make this choice because the father insisted on his religious rights to have primary care of the children. I find both parents allow their negative and ill feelings towards one another to affect their perception of their relationships with their children.

I find neither parent takes responsibility for the dysfunctional family dynamics and both parents point to the other partner as the source of all issues within the family to the detriment of their relationship with their children. [ 89 ] In any event, I find that the mother has been able to maintain, for the most part, involvement in her children’s lives.

I am concerned that when it comes to HK, she may be too involved in the sense that on occasion she abdicates her parental responsibility and defers too much to HK. [ 90 ] As for the father, as I already stated, his level of involvement with SK appears to be appropriate, although I sense that the father tends to want too much control over his children’s lives. This is definitely the case with HK where his level of involvement has thus far tended to make matters worse.

Although I do accept that he has made efforts to try and find outside supports and resources to assist him in creating a healthier relationship with HK. Disruption to the child of a change in parenting [ 91 ] It is clear from the evidence and the submissions made by both counsel for the children that HK and SK desire an end to the uncertainty of where they will live and with which parent. The disruption in their lives has been this uncertainty. [ 92 ] HK has been in limbo for most of this year and not living with either parent until recently.

This has created a situation where, in a way, whichever parent he returns to fulltime might create a disruption. During that year he continued his relationship with his mother. Recently HK returned to his father’s care, but that experience has been less than successful. In this respect, I find there would be less disruption for HK should his mother become primary care giver than should his father. [ 93 ] SK since 2018 has been continually in the primary care of the father. She is currently experiencing emotional and psychological issues. Her father appears to be handling the situation.

Although she has a good relationship with her mother now, in the past SK has refused to be with her mother. I find that there would be a disruption in SK’s life should primary care change to the mother in light of my findings thus far. [ 94 ] Disruption however could also happen by living in a new City away from familiar faces and school. This leads to the next two factors. Disruption to the child consequent on removal from family, schools and the community the child has come to known [ 95 ] This factor speaks to the impact of the relocation on the child: Barendregt at para 154 .

I have touched upon these issues previously. HK would be impacted by a change in school, medical care, and easy access to family members outside of the mother’s

family should he move to Fort McMurray. However, he has visited his mother in Fort McMurray and for a longer time during the summer. He has connections with the mother’s extended family in Fort McMurray. He knows a teen his age. He has toured the educational and religious facilities with his mother. He has met with religious leaders. [ 96 ] SK does not have the same track record as HK in Fort McMurray although she has visited there and has also been involved in the community.

She is experiencing difficulty in school in Calgary but the school, from the information I have and accept, appears to be helping SK with her emotional and psychological issues. For instance, she has received counselling at the school. It also appears from the school records and reports that although some of her school relationships are negative, others are not. She has been able to identify friends who she can eat lunch with for instance. Moreover, she is close to her half-sisters. She can speak of her problems with her father. I find removal to Fort McMurray would negatively impact SK.

The existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside [ 97 ] Both children have lived in Calgary their entire lives except for the thirteen months in which HK lived in Chestermere. The court orders reflect this as well. Bringing together the findings under this group of factors [ 98 ] Overall, this factor is focused on the child’s needs. I am taking a holistic view of these factors. It is not a matter of which parent had the children at which point of their lives.

It is about assessing, through a child-centric lens, what is in these children’s best interests. Therefore, the child’s relationship with others and the strength and stability of those bonds are to be considered.

This includes consideration of the children’s views and preferences in the context of the nature, strength and stability of these relationships. [ 99 ] Also, because this is a relocation application, these factors include potential effects of the disruption to these relationships by HK moving to Fort McMurray without his father, potentially his sister, his other extended family members in Calgary and Chestermere, his school, friends, and other community services such as his supportive and caring doctor who treats his ADHD.

This factor will assist me in comparing HK’s move to Fort McMurray with his mother but without his father versus HK staying in Calgary with his father and without his mother. Similarly, the assessment of these factors will assist in comparing SK’s move to Fort McMurray with her mother but without her father versus HK staying in Calgary with his father and without his mother. [ 100 ] This group of factors suggest that overall, SK’s needs including her physical, emotional and psychological safety, security and well-being is best met in Calgary living with her father but must include generous access to the mother.

SK’s safe place is with her family. She is experiencing emotional and psychological problems which she has disclosed to her father who is willing to work with her to find SK the help she needs. In fact, she is already in counselling at a school that is well aware of her issues and needs. She also needs to continue to have access to her father and mother’s extended family. Her needs are well met in Calgary with her father. [ 101 ] An assessment of HK’s needs is more difficult. He has close bonds with the father’s family who live in Chestermere.

His school has been extremely supportive and involved in his physical, emotional and psychological safety, security and well-being. Dr. Bulat, who treats his ADHD, has also been very accommodating and very caring throughout. His mother is a source of security, love and support, although there are concerns of a lack of ability to provide parental direction when needed. HK and the father clearly love one another. The evidence shows there is benefit from their relationship when they are together in a stress-free environment such as a holiday.

However, the evidence of everyone including the father is that the relationship breaks down when they are living together on a daily basis. From the child’s perspective, the relationship with the mother is the stronger, more positive one. However, it is clear that for HK’s needs to be met outside of Calgary, the mother must create a stable parental relationship. Factors Focusing on Each Parent, Respecting the Parent’s Ability and Willingness to Care for and Meet the Child’s Needs [ 102 ] There are six factors under this group of factors.

These factors focus on the parent and each parent’s ability to meet the child’s needs as discussed under the previous group of factors as outlined above. Any plans proposed for the child’s care and upbringing [ 103 ] Both parents provided the court with detailed plans for HK. The most detailed plan from the mother is found in her affidavit sworn on July 13, 2022. In reviewing this affidavit, I was struck by the cogency and clarity of the plan.

The mother’s plan included the following: • Support from her extended family including grandparents and uncle; • Connection with the Islamic community including attending Islamic school; • Opportunities to participate in extracurricular activities such as basketball and robotics club; • Counselling with the local Imam; • Facilitating treatment recommendations of Dr. Bulat including ADHD treatment and counselling sessions; and • Ensuring HK has medical professionals in place to assist with his health needs and ADHD treatment, anxiety, depression, and any other psychological issues.

[ 104 ] At the pretrial conference I ordered supplementary affidavits from both parents to update the information as a year had passed since the plan was articulated. HK’s plan in the mother’s updated affidavit of August 21, 2023 has changed. Of course, it has been a year and plans can change dependent on the child’s needs. I was surprised however to see the mother’s plan for HK’s education. She no longer suggested he attend the Moslem School. Rather she suggested he attend a public school where he could continue the French program.

This plan is for French immersion is contrary to the HK’s best interests considering he was failing the French program at his school and needed to be transferred to the English stream. Moreover, the aunt, grandmother and the mother testified that the French program was detrimental to HK’s learning. The mother in the school reports seems to suggest that the French program was the reason HK was inattentive in school rather than his ADHD diagnosis and need for a higher dosage of his medication.

This part of the plan is concerning to me. [ 105 ] I find the mother’s proposal for HK’s residence with her in Fort McMurray is reasonable but for the recommendation that she enroll HK in French immersion. The weight of the evidence is against this enrollment. Leaving that aside, the mother has plans to involve her family in HK’s care to ensure he attends school on time when she is working as a Pharmacy Technician. She has thoughtfully worked out a plan for his integration into the Muslim faith community as well as counselling with the local faith leader.

HK will also be able to participate in extracurricular activities which he needs for his health and wellbeing. [ 106 ] The mother’s plan for SK is not as well developed but she would still have the benefit of the mother’s extended family while the mother is at work. The plan to separate the two children by having them attend different schools. The difficulties between the siblings I find is more than sibling rivalry and requires work, time, and patience. Simply sending them to different schools will not be enough.

Counselling is required and the mother does speak to that in her affidavit material but again this is only part of what needs to be done. [ 107 ] On the other hand, the father’s plan for HK, although highly detailed and researched is concerning. The plan originally set out in affidavit of July 6, 2022 essentially abdicates parental authority in favour of placing HK in a group home. The updated affidavit of August 21, 2023 tempers this approach but still suggests that HK spend some time at the group home. The father first maintained that the group home plan was there to provide counselling services for HK.

In the father’s cross examination of his sister, the sister pointed out that HK does not need to go to a group home to access counselling. In submissions, the father suggested a short stay at the group home would be a deterrent to HK’s conduct at home. In other words, a form of punishment. When pressed by me in submissions about this plan, the father retracted the group home as part of the plan. Although he did so, I find it is indicative of the fact the father simply cannot handle the son’s behaviour towards him. In fact, in Dr.

Bulat’s notes, after speaking to the father after the June 6, 2022 incident, noted the father was not even sure he wanted the son back in his home. [ 108 ] In the mother’s affidavit of July 13, 2022, the mother proposed that SK stay with the father in Calgary. At the time of the pretrial hearing, when counsel for SK indicated that SK was now disposed to live with the mother, the mother took the position both children should live with her. In the August 21, 2023 affidavit the mother suggested the kids go to different schools as an answer to the children’s tumultuous relationship.

During submissions, counsel for the mother submitted that if the mother does not have primary care of the two children, then in the alternative, she wants primary care of SK, and HK can stay with the father. [ 109 ] I find this alternative to be remarkable considering the mother’s long-standing position in the affidavit evidence that the father is abusive of HK and for HK’s safety and security he must be permitted to relocate to Fort McMurray to be in her care. Although I appreciate the mother’s position on SK changed when her daughter voiced a preference, albeit short-lived, to be with the mother.

I also can appreciate the mother being concerned with SK’s health and well-being due to her psychological state and her self-harm. In any event it was not clearly explained to me by counsel why this was a viable option. [ 110 ] The father has always taken the position that SK stay in Calgary with him. Any family violence [ 111 ] There was much evidence on the volatile relationship between HK and the father, which is highlighted by the events of June 6, 2022. There was evidence of complainants made to the police and to Child and Family Services of family violence, again mostly in relation to HK.

Counsel for the mother pointed to an incident between the father and his sister on Thanksgivings Day. Counsel also presented evidence of family violence in the form of coercive control. [ 112 ] Under cross examination the mother admitted she contacted Child and Family Service and the police regarding the father. She explained that when it comes to her children’s health and safety, she is willing to do anything it takes to keep them safe. She agreed the various allegations were deemed unsubstantiated. In cross examination, the mother maintained this did not mean the incidents complained of did not happen.

I agree that this does not mean the incidents of family violence did not happen but neither does it mean the incidents did happen. This is something the mother is not willing to admit. [ 113 ] This leads me to the incident of family violence involving the crude words and anger directed toward the father’s sister, the children’s aunt, on Thanksgivings Day. The father testified that he did not engage with his sister in the way described and there was tension between family members that evening from continuing interfamily issues. As I discussed earlier, there is much ill feelings between the father and his family.

It is always sad to see families devolve into name calling and finger pointing. I do not see how this evidence advances the mother’s case. Unfortunately, extended families can argue, and it can happen in front of children. It does not make it right but neither does it make it family violence. On balance, I cannot find this is family violence. [ 114 ] After carefully reviewing the evidence, I find I cannot determine on a balance of probabilities what happened the evening of June 6, 2022. The evidence regarding the event is expressed differently depending on the people narrating the information. For instance, Dr.

Bulat recorded his conversation with the mother in which she described the incident. Dr. Bulat noted that HK was kicked out of the father’s home due to a fight over food and because the father accused HK of stealing from his sister. The father took HK to the police station and then they returned home. A physical fight ensued when they returned home. This is different from the mother’s description of the events, which merely repeats what HK told her alleging the father cut HK and kicked him in the stomach.

The mother testified she believes the father was the aggressor because she believes her son’s narration of the event. In her view, HK is an accurate narrator, even

though the evidence shows HK can exaggerate his claims. For instance, HK’s information regarding his sister’s self-harm depicted a much more severe event than what actually occurred. [ 115 ] The father denies being the aggressor. According to the father, HK refused to turn off his phone and go to bed. The father threatened to turn off the Wi-Fi and they ended up struggling over HK’s phone. The father further maintains that HK has assaulted him in the past.

In any event, I cannot make a finding on this evidence who the aggressor was but what I do accept is that there was an altercation between the father and son over possession of the phone, which in and of itself is family violence. [ 116 ] I pause to remark that no matter the age of the child or the aggression perceived, it is inappropriate for a parent to place themselves in a situation where physical contact is used. In this case, no matter the frustration, the father should have stepped away from the situation and let matters cool down.

Part of the difficulty is the father’s approach to parenting HK who needs parental guidance consistent with his personality, disposition, age, maturity and sympathetic to his ADHD diagnosis. In the circumstances of this case, the father has been unable to navigate these issues appropriately. I accept the father is trying. There is evidence leading up to the June 2022 incident that the father was seeking help from outside resources.

However, it seems that the father spent more time looking for help than he did actually getting it in a consistent and effective way. [ 117 ] Much was made of the ODD diagnosis as a false flag created by the father. Although Dr. Bulat backed down from this diagnosis, at its core, is not the diagnosis but the symptoms. What I mean is that HK does show defiance toward the father because the father has not learned how to successfully engage with his son. This is exacerbated by his approach to zero tolerance and highly restrictive rules in the home.

Yet HK needs boundaries, as all children do, but these boundaries must arise from an open and honest discussion with the child on parental expectations that include the child on how they can successfully fulfill them. [ 118 ] In other words, positive relationships are created when the child has a hand in creating the expectations of that relationship. This particularly applies to the teenage years when children need reality-based boundaries that are fair and achievable.

Unrealistic expectations cause friction and fear. [ 119 ] Although I do not find that the father has been intentionally abusive to his children, what I do see is a father who is struggling to appropriately parent his child. The father has reached out to many resources, yet he is still unable to effectively parent HK. His approach and efforts parenting SK are different likely because the two children have different dispositions and have a different relationship with the father. Each child is different and approaches parental authority differently. SK has no documented difficulties with the father, yet HK has many.

The father however must be able to positively engage with both. This does not mean the father will never be able to acquire the skills needed to parent HK, but at this point in time he does not yet have that ability. [ 120 ] Counsel for the mother submitted the father engages in coercive control, which is a form of family violence. Although I agree coercive control is a form of family violence, I do not accept on the totality of the evidence before me that the father engages in coercive control.

Definitely, he engages in parental control that might be viewed as overly restrictive and ineffective such as his limitations around internet and Wi-Fi usage as a form of punishment. But that in my view is poor parenting, not coercive control. [ 121 ] There was also much made of the father insisting on his final decision-making authority when HK was living with the grandmother and aunt. As an example of this, counsel led evidence from the grandmother regarding an incident in the October of 2022. The grandmother testified that HK was ill, and she took him to her doctor.

The doctor gave the grandmother a prescription to fill but the grandmother needed the father’s medical insurance information to fill it without cost to her. The grandmother phoned the father who told her not to fill the prescription because it was used to treat HIV. Under cross examination by the father, the grandmother was shown a text sent by the father at the time advising her of a penicillin allergy for HK and his concerns the drug prescribed would trigger the allergy. The grandmother did not recall the text message but when shown it by the father, she admitted the text exchange did happen.

She then explained she was angry and upset with the father at the time. She did not fill the prescription. [ 122 ] I accept that the grandmother was upset and angry with the father. They do not have a good relationship and there are ill feelings between them. However, I find that this state of their relationship has negatively impacted the way she views her son. The text was about penicillin. It was not about HIV. I do not find that this incident is an example of coercive control by the father.

It is an example of an overly anxious father who is trying to help his son in circumstances where he is not allowed to see his son. It also reflects the fact that HK’s interim living arrangements were lasting longer than was anticipated by the order. The Hollins Order #2 does not make it clear who had the decision-making authority for the child’s health. The ability and willingness of each person to care and meet the needs of the child [ 123 ] As already discussed, HK and SK require parental due care and attention.

HK has been diagnosed with ADHD since 2019 and requires daily medication, particularly when attending school. He also requires counselling to assist him in dealing with his emotions and well-being. He needs to be in the care of a parent who can support HK emotionally yet will exert parental authority is a positive and effective manner. This is particularly important for HK’s success at school, for positive peer interactions, and for a healthy relationship with his sister. [ 124 ] Similarly, SK needs to continue the psychological counselling she has begun through her school.

This is to assist her in the regulation of her emotions and to provide her with ways to appropriately react to her anxiety and fears. SK also needs to be in the care of a supportive parent who will set appropriate boundaries and achievable expectations. This is particularly important for SK’s success at school, for positive peer interactions and for a healthy relationship with her brother. Both children need to have access to their extended family with whom they enjoy supportive and healthy relationships. [ 125 ] The father maintains he is willing and able to meet the needs of both children.

I find that the father, based on all the evidence as discussed under the previous factors, is not willing to support HK in a way that is consistent with HK’s best interests. For example, in the affidavit evidence and in his cross examination at the hearing, the father described the various ways HK’s aggression has impacted him and his family. He spoke to a group home as one of the ways HK’s behaviours could be controlled. Although, the father’s more recent plan has HK living at home with in-home supports, I find that the father’s willingness and ability to meet HK’s needs is limited. In home

supports are not a substitute for a stable home environment free of tension. The father loves his son and wants the best for him, but he does not as yet have the skills required to help HK as their relationship is marked with friction and anger. [ 126 ] The mother however has a different relationship with HK. They are in contact with one another regularly and HK reaches out to his mother when he needs help. For the most part, the mother is willing to help HK meet his needs. I am still concerned with her willingness and ability to ensure HK receives the medication required to control his symptoms of ADHD.

As late as July 22, 2023, Dr. Bulat noted the mother still did not accept HK’s ADHD diagnosis. Yet, the mother in her July 13, 2022 plan indicated a willingness to find HK a doctor in Fort McMurray to continue these treatments. [ 127 ] In any event, in the mother’s updated affidavit and while under cross examination, the mother accepted the ADHD diagnosis and appeared to be committed to ensuring HK was properly medicated, that he had the counselling and supports he needs, and she would ensure the school in Fort McMurray could accommodate those needs.

I do not accept that HK’s conduct is perfect when he is with the mother or that all his misbehaviour can be attributed to being a teenager. HK clearly has social, emotional and psychological issues that need attention. He also needs a parent who can regulate his conduct and does not simply do whatever HK wants as the easier way to deal with his difficulties. [ 128 ] The father, based on the entirety of the evidence, has a strong relationship with SK. SK has been experiencing serious emotional issues since January of 2023. These issues have revolved around high anxiety, panic attacks and peer group problems.

The school has intervened, and the father has been involved in ensuring his daughter received psychological services at school. He also took her to the hospital when she was experiencing high anxiety and panic. Once SK admitted to the father, she was self-harming, he spoke with her in a positive way. [ 129 ] However, SK has not been attending all classes regularly. The father testified that when he is aware of this, he leaves work to take her to school.

It is likely the absenteeism is partly because SK has been skipping classes when at school, considering she has higher rates of absences in some classes and not others. I find that on balance, the father is willing and able to meet the needs of SK. [ 130 ] The mother and SK were not speaking for a period of time in the spring of 2023. Although they spent a few weeks together in the summer, I am not satisfied on a balance of probabilities that the mother can meet the needs of SK. Most of the mother’s evidence focuses on HK.

For instance, she testified that she accepts whatever her son says to her including HK’s position that SK was the instigator of the aggressive argument between SK and HK in August of 2023. To be sure, the mother is appropriately concerned with SK’s well-being and her recent emotional issues. However, there is no evidence of what the mother has done to help SK other than to suggest SK’s issues are the father’s fault. [ 131 ] The mother and the father have employment in their respective cities. Financially, the mother is able to meet the needs of the children.

The father submitted that his financial situation is pressed having HK also living in his household, but he stated that he was prepared to financially make it work. Having said that, the father did speak of financial reasons for why he did not spend as much time with the children, specially, the son, HK. [ 132 ] I further find neither parent is able to meet both HK’s and SK’s needs together. This is shown by the arguments in the father’s home between HK and SK that have resulted in police contact. This is shown by the findings in the previous paragraph that the mother tends to side with HK.

Any civil or criminal proceedings that are relevant to the safety or well-being of the child [ 133 ] Although the police and Child and Family Services have been called to investigate family violence, no criminal charges have been laid. In reviewing the many court orders issued regarding the family since the parents separated in 2016, I did see orders pertaining to an emergency protection order and a civil restraining order. Both orders were subsequently vacated. These orders confirm there is high conflict within the family dynamics.

Reasons for the moving parent’s move to the extent they are relevant to the best interests of the child [ 134 ] I find there are no reasons for the mother’s move that are relevant to the best interests of the child: Barendregt at paras 129- 130 . Bringing together the findings under this group of factors [ 135 ] The six factors under this group are focused on the parents but still require a child-centric assessment and approach.

Under these factors, I am assessing the parents’ willingness and ability to meet the needs of the children considering the physical, emotional and psychological safety, security and well-being of the children. In the following paragraphs, I will outline the essential features of the evidence relating to these factors. [ 136 ] I find that the parents’ acrimonious relationship and the ill feelings between the mother and the father as well as between the father and his mother and sister, impacts the weight of the evidence of all parties. Additionally, these poor relationships negatively impact the family dynamics.

It also causes stress and anxiety for the children. [ 137 ] Although I do not accept that the father is abusive and the source of all of the problems within the family, the father lacks the parenting skills needed to deal with HK in a positive and appropriate manner. An example is the incident of June 6, 2022 where the father and the son struggled over HK’s phone. This incident resulted in HK leaving the home on a cold and rainy evening with eventual police interaction. It also resulted in HK being removed from the father’s care.

Although the father has shown a willingness to receive counselling for himself and has sought in-home resources to help with his parenting, at this time he does not have the ability to wholly meet HK’s needs. [ 138 ] I find that family violence, being an atmosphere of aggression, is present between the father and the son and at times between

the son and the daughter. I accept that while the father does not exert coercive control over the family, his ability to exert positive parental authority with his son is limited. However, on balance I am satisfied he is able to effectively parent his daughter, who has started to experience difficulties at school since January of 2023. [ 139 ] While the father’s parenting approach, specifically when it comes to HK, is overly restrictive, I find the mother under parents and at times abdicates parental authority to the detriment of her children.

The prime example of this is when, despite the court order, she returned HK to the father’s home despite her belief the father was abusive because HK wanted to go there. Moreover, the mother believes whatever HK tells her without looking to other facts or other possibilities. An example of this, is the mother’s belief in the son’s narrative when it came to the aggressive argument he had with his sister. Moreover, the mother’s ill feelings towards the father have resulted in a reluctance to believe HK’s diagnosis of ADHD, which is well documented both at school and with the medical specialist.

This attitude has the potential to be harmful to the welfare of HK. [ 140 ] Finally, I find to varying degrees the parental plans for HK are wanting. I find the father’s plan for HK misses what HK truly needs, which is positive parenting feedback that is firm but fair and recognizes HK is not just a diagnosis but a loving teenager who needs parental guidance and patience. [ 141 ] Looking at all the evidence pertaining to this group of factors, I find the father’s willingness and ability to care for and meet the needs of HK considering his physical, emotional, and psychological security and wellbeing is limited.

On balance, I find the mother is willing and able to care for and meet the needs of HK. In terms of SK, on balance, I find the father is willing and able to care for and meet the needs of SK considering her physical, emotional, and psychological security and wellbeing. I find the mother’s ability to care for and meet the needs of SK is limited. Factors Focusing on the Relationship of the Parents, Respecting their Ability and Willingness to Promote a Meaningful Relationship with the Other Parent [ 142 ] The final group involves the following six factors: 1.

Any plans proposed for the child’s care and upbringing; 2. Any family violence; 3. The ability and willingness of each person to communicate and cooperate on issues affecting the child; 4. Any civil or criminal proceedings that are relevant to the safety or well-being of the child; 5. 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 6.

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. [ 143 ] I have discussed the first four factors under the previous section, but I will comment on the factors specifically relating to the parents’ relationship and their ability and willingness to promote a meaningful relationship between the children and the other parent. [ 144 ] I have said throughout these reasons that the parents’ relationship is strained, unhealthy, and acrimonious.

For example, the father has made, what I find to be, outrageous suggestions the mother believed in magic instead of medicine. Another example is the mother who refuses to accept HK’s medical diagnosis of ADHD because she believed the father was the source of this information. [ 145 ] The notes of Dr. Bulat, HK’s doctor, express this dysfunctional relationship between the parents, the best. In his notes of April 13, 2021, Dr. Bulat comments on how the parents say “the exact opposite things” to the doctor “and are completely at odds.

Both feel that the other is entirely inadequate to parent [HK]… I don’t think they could ever have a discussion and come to a consensus together”. [ 146 ] I am also concerned that the father has not adequately fulfilled the Nixon Order when it comes to keeping the mother informed of the health and welfare of the children. [ 147 ] Despite this, I have seen email exchanges where the parents have been civil one to another, so I accept that the parents do have the ability to collaborate in their children’s best interests.

I find that this litigation of parental arrangements and relocation have exacerbated their relationship. It may be that as this matter concludes, the parents will be better able to be partners in their children’s health and wellbeing. 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 [ 148 ] As indicated under the previous heading, both parents have plans in place for each child.

Each parent, to a certain extent, admitted the other parent must have access to the children should the other parent not be the primary caregiver. Essentially each parent proposes that the other parent have access to the children during specific times such as holidays and summers. Any further time would be discretionary. Certainly, the mother has shown a willingness to come to Calgary for extra visits when needed. The father maintains he has limited finances, and he does have another family to maintain, but he, I have no doubt, will make the time to see the children when he can.

[ 149 ] SK and HK are adolescents and when it comes to reaching out to a parent, the child may not wish to do so. In fact, there was a time that SK did not speak to her mother but there is a parental obligation to ensure the relationship with the other parent is maintained. Setting specific times for child/parent interactions are needed but encouraging discretionary time with the other parent is important. Therefore, allowing the child to use technology, for instance, to visit with another parent, even during the evening hours, should be a goal. Both parents should ensure that house rules do not impact this access. Whether each person who has parenting time or decision-making responsibili

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