JRD v AKMD, 2023 ABKB 685

Court of King’s Bench of Alberta Citation: JRD v AKMD, 2023 ABKB 685 Date: 20231207 Docket: FL01 40150 Registry: Calgary Between: JRD Applicant - and - AKMD Respondent/Cross-Applicant 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 by the father for primary care of the two children of the marriage and a cross-application by the mother to relocate the children from Calgary to Kelowna, British Columbia. [ 2 ] The parents, who married in 2011, separated in 2017. In a signed written agreement from July of 2017, they agreed to a shared parenting arrangement of the children, a daughter, AD, who is now ten years of age, and a son, JR, who is now eight years of age. [ 3 ] In 2022, the mother went to Kelowna BC where her family resided.

On consent of the father, the mother also took the children. At the time, the mother’s intention was to stay for six to twelve months. She agreed to give the father monthly access to the children. The mother moved to take advantage of financial and emotional support from her extended family. [ 4 ] In May of 2023, the mother advised the father that she wished to stay in Kelowna with the children.

On August 1, 2023, the father sought and was granted an Order returning the children to Calgary pending a relocation hearing. [ 5 ] The father opposed the relocation and proposed he be granted primary care of the children with generous access to the mother. Issues and Applicable Legal Principles [ 6 ] The sole determinant of parenting orders, be it parenting arrangements or relocation, is the best interests of the children. Sections 16(3) and 16.92(1) of the Divorce Act describes several factors I must consider in determining this including factors that apply in a relocation situation.

The overarching consideration is the children’s physical, emotional and psychological safety, security, and well- being: Barendregt v Grebliunas , 2022 SCC 22 at para 152 [ Barendregt ] . [ 7 ] The ultimate question in this relocation application asks what is in the best interests of the children in all the circumstances, considering the two scenarios of the children living in Calgary without their mother, or living in Kelowna without their father: Mezzo v Watts , 2021 ABCA 76 at para 18 [Watts] .

In other words, in which of the locations, and with which parent, are their best interests met: Watts at para 20 . [ 8 ] There is a preliminary question of whether the father’s parenting application is first considered, and then the mother’s relocation application. Although there is case authority for proceeding with the parenting application first, more recently the trend favours a holistic approach to these blended applications: Campbell v Guignard , 2023 ABKB 217 ( Campbell ).

This approach encourages a contextual analysis of the entirety of the circumstances rather than an artificial compartmentalized inquiry in which the relocation factor is considered separately: Chapman v Somerville , 2022 SKCA 88 paras 33-45 . In the end, the driving principle for both applications are the best interests of the children. [ 9 ] The primary issue, therefore, involves a dual consideration.

I must consider whether it is in the best interests of the two children to relocate to Kelowna despite the impact it would have on their relationship with their father and whether it is in the best interests of the children to stay in Calgary notwithstanding the impact on their relationship with their mother: Barendregt at para 132 . In considering these questions, I will be mindful of both the mother’s relocation request and the father’s parenting position. [ 10 ] Moreover, I must decide the issue based on the burden of proof engaged pursuant to s. 16.93(1) of the Divorce Act .

According to the section, if the parents have substantially complied with a previous parenting order, arbitral award or agreement for shared parenting, the mother has the burden of proving that the relocation would be in the best interests of the child. Here, there is an agreement in place for shared parenting since 2017. [ 11 ] The mother submits the father did not always follow the alternate week on, week off arrangement with the children. Still, I am satisfied the children spent substantially fifty percent of their time with each parent.

This was before the mother took the children to Kelowna in September of 2022. Although it was a consensual move, the relocation was intended to be temporary with generous monthly access to the father. The understanding was the mother would return with the children and shared parenting would resume. [ 12 ] Based on this intention, and the fact there was shared parenting for five years prior to the temporary move, I am satisfied the parents have substantially complied with the agreement for shared parenting.

The burden of proving relocation is in the best interests of the children is on the mother. [ 13 ] Finally, I find there is a material change in circumstances, namely the relocation application, which require a fresh look at the overall parenting arrangements. Analysis [ 14 ] In Campbell , Justice Grosse, as she then was, organized the best interests of the child factors into three thematic categories, some which overlap but offers a meaningful approach to review the many factors in determining the children’s best interests. The three categories are all child-centred but relationship-based.

This means each category provides a slightly distinct perspective of the children’s lives. Together, these categories create a holistic depiction of the children’s best interests: Campbell at para 15 .

[ 15 ] The first category consists of those factors focusing on the child. The second category broadens the perspective to focus on each parent and their relationship with the child. Finally, the last category focuses on the relationship the parents have with one another. This analytical approach also integrates the considerations unique to relocation applications.

I will use this approach in determining the best interests of AD and JR. [ 16 ] Before I turn to the three groups of factors or thematic categories, I want to acknowledge the primary or overarching factor in considering the best interests of the children, as outlined in s. 16(2) of the Divorce Act , is the child’s physical, emotional, and psychological safety, security, and well-being. This consideration will drive the analysis and bind all other factors together.

Factors Focusing on the Children, Their History and Relationships [ 17 ] The various factors grouped under this theme are child-centred, bringing together those considerations that draw an accurate picture of the children, their needs, and their relationships: Campbell at para 16 . Under each factor, I will review and assess the evidence. The children’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration each child’s age and stage of development. [ 18 ] AD is ten years of age. AD is described by both parents as kind, caring and loving child.

The mother confirmed AD is bright, but experiences struggles connected to her physical and psychological well-being. This description is supported by AD’s school records both before the move to Kelowna and while in Kelowna. [ 19 ] Since an early age, AD experienced musculoskeletal issues. There has been no underlying diagnosis but over the years the mother has reached out for medical treatment. AD also has anxiety, which she has been treated since 2021. AD did not require medication for anxiety while in Kelowna, while according to the mother, AD asked for it in Calgary. [ 20 ] JR is eight years of age.

While in Kelowna, JR was diagnosed with ADHD. JR is also described by his parents as caring and loving. According to the father, JR is outgoing, active and enjoys sports. The mother described JR as a happy child who has an adventurous “free spirit.” [ 21 ] Notably in the school records for both children, AD and JRD are described as kind children who are quick to help others and are supportive of their peers. [ 22 ] The mother has continually advocated for her children in the education system. Her efforts in Calgary, before moving to Kelowna, were not successful. Kelowna was different.

According to the mother, the school took her concerns seriously and implemented workable strategies for the children. For instance, in Kelowna the mother met with a team of educators from the children’s school to discuss the children’s educational and emotional challenges. It was in this meeting that the mother was referred to Dr. Bedard, a local pediatrician. [ 23 ] Dr. Bedard agreed to follow both children in her practice. It was Dr. Bedard who diagnosed JR with ADHD, which led to specialized services in the school. Dr.

Bedard has been active in assisting the mother with parenting strategies for both AD and JR, including a parenting program. In Dr. Bedard’s opinion, AD’s anxiety in Kelowna has improved enough that AD did not require medication while there. [ 24 ] The mother believes that because of her efforts in Kelowna, the Calgary schools are now more responsive to the children’s needs. There is an IPP in place for AD and in class assistance for JR, who was finding it difficult to remain focused in class.

The father agreed that although JR’s conduct was concerning in Kelowna, JR did improve over time while there. [ 25 ] According to the Kelowna school records, AD adjusted well to the school. AD was recognized as a hard worker and a valued member of the class. Currently, AD is in grade 5 in middle school, which offers classes for students in grades 5 to 9. AD’s Student Support Plan identified some of AD’s stressors as negative peer interactions, learning challenges, and emotional regulation. The Plan involves AD in responding to and dealing with triggering scenarios while at school.

In conjunction with the Plan is AD’s IPP or Individualized Program Plan, again another tool to assist AD, her parents, and the school in dealing with AD’s stressors to ensure AD’s continued educational success. [ 26 ] In the father’s view, the children’s psychological and emotional needs are best met in Calgary. He has worked hard since their return in September to engage with school authorities and has found the children new medical health professionals. The father is living in a different quadrant of the city than previously and has accessed new services.

The children are also attending different schools than when they were last in Calgary. Due to capacity issues, the children are at two different schools albeit the middle school AD is registered in will obviate the need to change schools in grade 7. [ 27 ] The mother takes the position she only realized the move needed to be permanent when she saw how the children were thriving in Kelowna. Dr.

Bedard’s letter speaks of the importance of stability for both children to help address their psychological and educational issues. [ 28 ] At trial, the mother testified that recently AD has spoken of self-harm including suicidal ideation with the school psychological services. The father admitted this information. [ 29 ] I find the children are at a stage in their development where the support and attention from both parents is important, particularly as they are experiencing emotional and physical difficulties. AD is on the cusp of her pre-teen years, a time where children start to test their independence.

She has shown some alarming behaviour and emotions, which need to be addressed. Although AD has access to a school psychologist and specialized plans, I am satisfied that Dr. Bedard would be able to provide targeted care to AD over and above the school responses. I am also satisfied that considering the mother’s past efforts, AD and JR would receive the

psychological, emotional, and physical supports they need to thrive in Kelowna. [ 30 ] Both parents testified to their close relationship with their children, and I accept this evidence. Although I find both parents are supportive and loving, I find the mother has historically been more involved in advocating for the children’s emotional, psychological and physical well-being then the father.

There is no doubt the father loves his children and wants what is best for them, but I am satisfied the father’s more active attention to the children’s needs started once the children returned from Kelowna. [ 31 ] The mother has actively ensured the children’s well-being be it in Calgary or Kelowna. In Kelowna she took steps to find health professionals who are knowledgeable and responsive to the children’s needs. This is vitally important for both children who are struggling with psychological health concerns such as JR’s ADHD and AD’s anxiety.

The mother also actively ensured the integration of the children’s health with their educational needs. Although this has been reproduced to a certain extent in Calgary, I accept that Kelowna offers a stable, calm, and nurturing environment for the children. The history of care for the children [ 32 ] During the marriage, the mother was the primary caregiver of the children.

Pursuant to a separation agreement, from 2017 to 2022, the children were in a shared parenting regime of one week on and one week off with both parents. [ 33 ] In 2022, the father experienced a motorcycle accident that curtailed his ability to work and care for the children. I find the mother was the primary caregiver at the time and this change in care was part of the reasoning behind the mother’s desire to move to Kelowna where her family resided. The father in his affidavit evidence initially suggested he lived with the mother and the children while recuperating from his accident. I find this was not the case.

Even the father eventually admitted he did not live full time with the mother. I therefore find the children were in the mother’s primary care from May 2022 until the children were returned in August of 2023. [ 34 ] The mother went to Kelowna with the children from October 2022 to the end of August 2023. The father agreed to the move on the basis that it was for six to twelve months only, and he would see the children monthly. The father maintains the mother broke this agreement. Not only did he not see the children monthly but the mother unilaterally decided not to return to Calgary with the children.

Both parents agreed the initial decision to move was based on a desire for both parents to get back on track financially and emotionally for the benefit of their children. [ 35 ] When the children were returned to the father, they lived with the parents of the father’s new partner. The father did not live in the same household. According to the father he was with the children in the morning and evening, he just did not sleep there. The father explained he did not want to expose his children to the negative influence of his roommate.

Even so, the father did not explain why he did not move into the home where the children were at the time. I find this situation was not in the children’s best interests particularly as they had just moved back to Calgary after a year’s absence and would need the supportive continual presence of their father. [ 36 ] There was no clear evidence as to when the father moved into a three-bedroom townhouse with the children and his partner. Although AD and JR have their own bedroom in the townhome, his partner’s son is also accommodated when he is there. The partner now has shared parenting of her seven-year-old son.

In the father’s view, the children having their own rooms was “super” important. [ 37 ] When the children were in Kelowna, they lived with the mother’s brother, his wife, and their two children, and another brother of the mother. The mother insisted that although there were eight people living in the home, it was large enough to accommodate them all. She and the children lived in the basement with the other brother. The two children shared a room, and they had access to their own living room.

Although the mother has a plan to save enough money to purchase a home, she gave no timeline. [ 38 ] Although I am concerned with the less-than-ideal living arrangements in Kelowna, in my view it is the quality of the living arrangements not necessarily the spatial accommodations that matter. As mentioned earlier, I accept the home life in Kelowna was stable and supportive. There is no evidence that the accommodations adversely impacted the children. I did however hear evidence that JR was impacted by the accommodation changes when the new partner’s son started staying with the family every other week.

I also heard there were, on occasion, tension between AD and the new partner. I note that there was no evidence of disharmony in the Kelowna home. The children’s cultural, linguistic, religious and spiritual upbringing and heritage [ 39 ] The father mentions in his affidavit his family is Mormon. He also suggested the family is close and the children see his mother and sister regularly. The children occasionally attend church with his family. The mother confirmed she was willing to accommodate her children’s religious practices.

The children’s views and preferences, to the extent that it is appropriate to ascertain them [ 40 ] There is little evidence of the children’s views and preferences other than evidence from each parent that the children are happy to live where each parent now resides. I find this to be self serving evidence that does not provide me with a basis to consider this factor in any meaningful way. Considering the children’s young ages and this lack of credible evidence, I find this factor does not impact the determination of the children’s best interests. The nature, strength and stability of the relationship (

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

B) between each child and each person in respect of whom an order would apply [ 41 ] The father made much of the mother’s poor judgment in her relationships with friends and partners. For instance, there was evidence of an inappropriate and harmful incident caused by a close friend of the mother that adversely impacted AD. The mother admitted the incident, explaining that she was at home at the time and took immediate steps to get AD treatment. She also broke off

relations with her friend. I do not draw any adverse inferences from any of this evidence. [ 42 ] In Kelowna, the children have a close relationship with the mother’s family, particularly with her brother’s children with whom they share a residence. According to the mother, the family relationships in the home are strong, stable, and nurturing. [ 43 ] In contrast, the mother maintained that the father and his partner argue. Moreover, AD does not have a positive relationship with the partner. The mother further testified that the partner’s son is a bad influence on JR.

After a visit with the father before the children moved back to Calgary, JR used bad language. The father explained that when he is aware of such language, he stops it. He further explained that AD and the partner do get along but like any other couple, they can argue. The father also explained that AD, like many pre-teens in blended families, will sometimes complain.

Although this kind of friction is not unusual in a blended family, it is noted that in Kelowna the children would be living with other extended family members, with whom, by all accounts, they have a positive and supportive relationship. [ 44 ] There was some evidence in the affidavits regarding the mother’s brother driving while consuming alcohol. I reviewed the totality of the evidence, and I am not satisfied on a balance of probabilities that the brother did so.

Taking into consideration the views of the children’s current guardians, the benefit each child of developing and maintaining meaningful relationships with each guardian or proposed guardian [ 45 ] Both parents acknowledge the importance of the children maintaining and developing meaningful relationships with each parent. The father described the mother as the “best mom” and “amazing” with the children. [ 46 ] The mother agreed the father “absolutely” loves his children and should have a relationship with them.

Although she trusted the father to protect the children and keep them safe, she did not trust him with their emotional well-being. [ 47 ] I agree that the children benefit from relationships with both parents. I do however have concerns with the father’s ability to regulate his emotions. I will discuss this more thoroughly under the family violence factor.

The existing parenting and decision-making arrangement and relationship between each child and each parent, including the amount of time spent by each child with each person and the level of involvement in each child’s life of each of those persons [ 48 ] Although the father shared parenting before the move to Kelowna, according to the mother, the father was not an involved parent in the children’s education or their medical and psychological needs. The father did not attend many of AD’s medical appointments.

In the mother’s view, the father was uninterested in the children’s schooling until the relocation application. The mother also points to the father’s lack of availability to visit the children while they were in Kelowna. Moreover, the father has other people caring for the children such as his new partner and his partner’s parents. [ 49 ] The father explained he was unable to attend all appointments because of his work schedule. However, his new position as manager gives him the flexibility to be present for his children. While the children were in Kelowna, he had access to their educational information.

Now that the children are in Calgary, he picks up the children at school about three times a week. This gives him access to the teachers and an ability to be informed of the children’s progress in school. He maintained the mother was the obstacle to visiting the children while they were in Kelowna. [ 50 ] The mother and father blamed each other for the father’s lack of access to the children.

The father did not see the children every month, but he did see them shortly after they moved to Kelowna in October of 2022, during the winter break in December/January, during the spring break in March of 2023, and thereafter in May, June, and in the summer of 2023. [ 51 ] The mother explained she was unable to drive the kids to Calgary in November due to mechanical issues with her car. The father did not have a car, although he did drive to Kelowna to see the children in October of 2022 and in May of 2023.

There was evidence the mother offered to fly the father out in February of 2023 to see the kids, but the father declined due to the illness of his dog without suggesting alternate dates. The visits also varied in length. For instance, the father only saw the children for one day on Father’s Day. [ 52 ] I appreciate the father is fearful he will lose his children if they relocate. I also understand that much of this fear flows from his subjective feeling that he was shut out of the family while the children were in Kelowna.

Some of this feeling is understandable because he did believe he would see the children monthly. However, in my view, this was an unrealistic expectation by both parents. Considering the children’s school

schedule and the obligations facing both parents, monthly access was not workable. I do not apportion blame on the mother for this lack of monthly access. I accept both parents believed it would happen. I do however find that it is unreasonable of the father to have expected the mother to make more efforts than him. For instance, the father’s explanation that he thought it inappropriate to suggest an alternate date to visit because the mother was paying for the flight lacks credibility. [ 53 ] The father testified that he has close relationships with each of his children.

He is actively trying to figure out AD’s social problems at school. In his view, AD is being bullied but is also bullying other kids. He suspects AD’s problems are connected to the parental separation. He believes he and AD have a “very special bond” and he “just wants her to be happy.” He feels AD needs her father every day. [ 54 ] The mother is concerned with the father’s ability to respond to the children appropriately. The father yells at the children when he is angry and lacks patience with AD, who requires additional support.

For instance, the mother described a situation where the father refused to pick up a costume for AD because he could not manage three kids without his partner’s help. The partner’s son was with them at the time. This led to an argument between the father and his partner for which AD was blamed. In another incident, the father yelled at AD for not eating her dinner.

[ 55 ] The father agreed he needed his partner’s help to handle all three children. However, in his view, AD needed to listen to him and wait until he was able to take her. In his view, “no” means “no” and AD cannot go to her mother for a different outcome. The father denied yelling at AD for not eating her dinner, although he admitted he raised his voice. It is important that AD knows she must eat what is prepared for her or there will be no dinner. It is important the children understand that “not everything will go their way in life.” After these disagreements, he always tells his kids that he loves them.

The father explained that AD is emotional, and it takes her longer to get over small problems. In the end, he and AD can talk through the issues. [ 56 ] Although I accept handling three children at one time can be a challenge to any parent, as mentioned earlier, I do have concerns that additional stress is particularly challenging for the father.

I accept and give the father credit for attending counselling to help him work through his emotional regulation issues, however, it was clear throughout the father’s testimony that this challenge is a continuing one. [ 57 ] After the mother was ordered to return the children to Calgary pending the relocation hearing, she returned to Calgary so she could be with her children. I accept the mother’s priority is to provide for her children’s wellbeing and happiness. Disruption to each child of a change in parenting [ 58 ] It is difficult not to find disruption to a child’s life in a relocation application.

Whatever the decision, the child will have more contact with one parent over the other. In this case, the children have been in a shared parenting regime and seeing each parent on a regular week one and week off basis. This regime has been in place since September. Before that time, the children were in Kelowna for a year.

Although the children did not see the father monthly, they did see their father about once every two months. [ 59 ] There is no doubt that even before this application, there was disruption in the children’s lives and relationship with their parents due to the motorcycle accident and the consensual move to Kelowna. Although the move was to be temporary, for six months to a year, considering the children’s ages, that separation time was meaningful.

Disruption to each child consequent on removal from family, schools and the community the child has come to known [ 60 ] Again, because the children were in Kelowna for a year, they have a connection to both communities. They have close relatives in each location as well as friends. Removal will disrupt these close ties, but they will not sever them. [ 61 ] The children were placed in new schools when they returned from Kelowna. They have only been in these schools since September of 2023, but disruption is likely if the parenting regime changes.

I am satisfied the children already have a connection to the Kelowna school, which they attended for a school year. [ 62 ] I accept there will be disruption by either scenario – be it the children go to Kelowna or stay in Calgary – when it comes to community, friends, family, and schooling. Still, on balance, I find that relocation to Kelowna, where the children already have a track record, will not be as disruptive if the children had not lived there for a year.

The existence of an agreement that specifies the geographic area in which each child is to reside [ 63 ] In the 2017 separation agreement the parents agreed “that the parenting arrangement works best with both parties residing in Calgary.” The agreement goes on to discuss relocation, which I will refer to later in this judgment. However, I do note that the place of residence is tied to the shared parenting regime. It makes perfect sense that Calgary would be the preferred place for such a regime.

Factors Focusing on Each Parent, Respecting the Parent’s Ability and Willingness to Care for and Meet the Child’s Needs [ 64 ] The next group of factors focus on each parent’s ability and willingness to meet the needs of the children. Although there are six unique factors, in assessing this thematic group, I must still review the evidence through a child-centred lens including the primary consideration of the children’s physical, emotional, and psychological safety, security and well-being.

Any plans proposed for the children’s care and upbringing [ 65 ] I find neither parent provided any concrete plan for the children’s future care and upbringing other than staying the course. The mother has a long-term plan to purchase a home in Kelowna but there were no specifics connected to this plan. When asked, the mother made vague references to renting a home independent of her family. I find the plan, as described, is for the family to stay with her siblings. [ 66 ] The father has a new job and believes he can finally provide some financial security for the children.

However, there is evidence the father has moved within Calgary. For instance, the children are now living in a different area, going to different schools, and required new health professionals. They still have access to their old friends from before the move. [ 67 ] Overall, I find this factor does not assist me in making the final decision on relocation. Any family violence [ 68 ] Justice Karakatsanis in Barendregt considered family violence a significant factor in deciding the best interests of the child: Barendregt at para 9 .

Family violence, in whatever form, affects the development of the child in significant ways: Barendregt at paras

141 to 147 . [ 69 ] According to the mother, she experienced emotional abuse by the father both during their marriage and after. She described feelings of belittlement. She also described feelings of being unable to oppose the father in their discussions for concerns any extra access she had to the children would be denied. [ 70 ] The mother did not connect her experiences to the children’s well-being, but she did testify to the father’s inability to appropriately correct the children’s behaviour. She also described a troubling incident when AD was three years of age.

According to the mother, the father was angry at AD, yelled at her, threatened to slap the child’s face, and put AD in a dog’s kennel. The mother cites this incident as the reason for their separation. [ 71 ] The father denied he threatened to harm AD and denied the incident caused the separation. The father did admit however that he made the threat to put AD in a kennel. There has been no suggestion in the evidence, other than this incident, that the father threatened to physically harm the children. Since that incident, the father has attended counselling.

Despite this, there was evidence that the father inappropriately reprimands the children, particularly AD. [ 72 ] On the stand, the father presented as highly agitated and emotional witness. The father candidly admitted he also experiences anxiety. I accept that giving evidence on a relocation application is an emotional situation. It would also generate anxiety. Even so, I observed the father’s evidence and found his responses to be often defensive and at times, aggressive. I also find the father tended to minimize his response to the children’s conduct.

For instance, the father denied yelling at his children, preferring to characterize it as raising his voice. In my view, no matter how it is described, based the evidence of both parents regarding this issue, I find the father does inappropriately raise his voice in response to the children’s conduct. [ 73 ] I must view this above finding in considering the father’s ability to care for and meet the needs of the children. I find I have concerns with the father’s ability, without support, to appropriately discipline and meet the needs of his children considering his difficulties regulating his emotions.

I do not believe the father would intentionally harm the children nor do I believe he would use physical violence on them. However, when stressed and pressured the father does have trouble dealing with the pressures of parenting. This is seen by his concern with caring for three children without his partner’s help and the evidence he raises his voice as a way to deal with the children. The father did speak of trying to talk through problems with AD, but this would come after the inappropriate reprimand.

I accept the father is trying to overcome his difficulties but on balance I find the mother is better able to care for and meet the children’s emotional needs. [ 74 ] I want to be clear that this finding does not detract from the clear evidence the father loves his children and wants what is best for them. I also accept the father is in counselling for these issues and making genuine efforts.

The ability and willingness of each person to care and meet the needs of each child [ 75 ] Under the previous factor, I have already discussed some of the relevant concerns raised by the father’s emotional regulation and anger management. Over and above these concerns I have already raised I am also not satisfied the father is able to sustain the increased attention he is giving to the children’s education and emotional difficulties. I accept his work is flexible but being a manager of a going concern does require his time and energy. Realistically, he cannot be there consistently for his children.

The evidence is that the mother’s work in flexible in that she works for her father in Kelowna and remotely manages a cleaning business in Calgary. I accept the mother is better placed to be a constant presence in her children’s lives. [ 76 ] Although the father testified he is willing and able to meet the needs of his children, I am concerned with the father’s vision of his role as a parent. He described the father’s role to teach the child lessons in life and the mother’ role to be nurturing. This description of parental roles suggests the father is more of the disciplinarian.

This position, in my view, also suggests the father lacks insight on the role of a parent, which, no matter the gender, is to provide support, love, and guidance. I am mindful not to place too much weight on the father’s comment other than to use it as an example of my concern that the father, based on the totality of the evidence, is simply not equipped to fully meet the needs of his children. [ 77 ] I also note the issue of child support is outstanding and the father has not paid any child support for the children while they were in Kelowna.

I accept the father at the time of the move was struggling financially, and this was one of the reasons why a move was agreed to be in the children’s best interests. The father explained that his ability to pay child support, even now when he is financially stable, is limited because he needs time to get back on track financially. [ 78 ] I note the father started his new job as manager in February of 2023, almost ten months ago. Moreover, the father’s evidence does not align with his expense on a three-bedroom townhome, which he presented as a more stable home for the children than what the mother has offered.

I find the father is overemphasizing his ability to provide material comforts when the children reside with him. This shows a lack of understanding and recognition of his obligation to provide for his children even if they do not primarily reside with him. [ 79 ] I am satisfied, based on the assessment of the evidence, that the mother is very well placed to meet the needs of her children. Once in Kelowna she actively advocated for her children’s well-being. She met with the school team. She was able to find a knowledgeable and engaged paediatrician for both children who can provide the care they need to succeed.

I am particularly concerned with AD’s recent mental health deterioration. I am satisfied that the mother will be able to connect AD with sustainable and individualized help, over and above the school psychologists with whom AD is currently working. [ 80 ] I appreciate the mother’s financial outlook has not been clearly explored in the evidence. However, I am satisfied the mother’s financial security is better promoted in Kelowna and as a result does provide for a stable financial environment. I have no doubt the mother will become more independent from her extended family as time and resources permit.

The ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship

[ 81 ] I have no concerns with either parent under this factor. Any civil or criminal proceedings that are relevant to the safety or well-being of the child [ 82 ] This factor is not applicable in this case. Reasons for the moving parent’s move to the extent they are relevant to the best interests of the child [ 83 ] I have already touched on this factor earlier. Initially, both parents saw the move as an opportunity to stabilize their financial and emotional difficulties. The mother did not go to Kelowna believing she would stay.

It was only in being there and seeing the support available for her and the children that she decided to stay. I accept that the initial decision and the present reason for relocation was based on the best interests of the children. Factors Focusing on the Relationship of the Parents, Respecting their Ability and Willingness to Promote a Meaningful Relationship with the Other Parent [ 84 ] This group of factors overlap with some of the factors considered under the previous

section such as the plans proposed by the parties for the children’s upbringing and the presence of family violence. Considering, this overlap, I will specifically discuss the three other factors that are new to this grouping. [ 85 ] Before starting the analysis, I recognize that this group of factors turns the focus slightly from the individual parent and their relationship with the child to the relationship between the parents. This change in focus is still centred on the children’s best interests.

The ability and willingness of each parent to communicate and co-operate in caring for the children [ 86 ] As mentioned, the parents were in a shared parenting regime before and after the children were in Kelowna for a year. The parent’s ability to communicate and co-operate was significantly different before and after Kelowna. Before Kelowna, the parents were able to communicate and co-operate in the shared parenting regime. I do note that the mother even then was the primary point person for the children’s health and educational needs.

I am also mindful of the mother’s evidence she felt at times that it was emotionally easier to give into the father when they were at odds. [ 87 ] The co-operation and communication broke down once the mother moved to Kelowna. This breakdown became worse after the mother served the father in the Spring of 2023 with an intention to seek primary care of the children, and continued in a similar vein after the children were ordered back to Calgary to the father’s care. [ 88 ] I agree with counsel that much of this breakdown was due to the impending litigation around relocation.

I also generally agree that once relocation is decided, and with the proper direction, the parents will be able to resume a more positive relationship in their children’s best interests. [ 89 ] However, as mentioned earlier, once the children were in Kelowna, the father began to feel disconnected from his children. I do not find the mother did this intentionally. I do find, however, that much of the father’s anxiety and anger from his perceived lack of access to the children during that time was because he believed he was being shut out from the family.

When I say family, I realize the parents are separated and are no longer a family unit. Still, I do believe both parents accept the importance of each parent in the children’s lives, and in this way, there is a family that needs to be promoted and preserved.

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 [ 90 ] Neither party provided any detailed parenting arrangement plans that, in my view, were appropriately cognizant of either parent having meaningful access should the relocation be ordered or not.

The mother in submissions did offer to assist the father in travel expenses and offered access whenever the children had long weekends from school. The father, in his material, basically offered the kind of access to the mother as if she were living in Calgary.

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 or an agreement, and the likelihood of future compliance [ 91 ] Counsel for the father spent time on this factor, suggesting the mother was in breach of the 2017 parenting agreement not to relocate the children without consent.

The mother suggested she was under some duress at the time to sign the agreement but mainly argued that at the time she signed the agreement she did not contemplate relocating, and therefore was not concerned with effect of that paragraph. [ 92 ] I have reviewed the paragraph in the agreement on relocation and I note that it requires a six-month notice period for a relocation application, a much longer notice period than statutorily required under the Divorce Act . I am not prepared to call this period unconscionable, but I do find it is not reasonable.

What would have been more reasonable is to connect the notice period to the children’s schooling to ensure educational stability. [ 93 ] The paragraph also suggests relocation could occur if the children consented. When I asked about the viability of children consenting to relocation, I heard the requirement was there to account for the children’s views and wishes if relocation happened when

the children were older. I find this is an

interpretation not apparent on the face of this agreement. In any event, I place diminished weight on this paragraph of the agreement due to the above noted concerns and based on the age of the agreement, which was six years ago. Final Determination of the Best Interests of the Children [ 94 ] As recognized by Justice Karakatsanis in Barendregt , determining the children’s best interests is a difficult task and a heavy responsibility. Whatever decision is made, lives will be impacted. This case has been particularly difficult as both parents clearly want what is best for their children.

The father has lately made great efforts to be involved in his children’s lives. He wants very much to remain a central figure in their lives.

Yet, I am satisfied, based on the detailed assessment of all factors as outlined above, the mother can best meet the needs of the children considering their ages and their challenges. [ 95 ] Based on the above assessment of the factors relevant to determining the children’s best interests, the mother’s present and past actions, the father’s limited ability to meet the needs of the children’s wellbeing, and the entirety of the evidence before me, I am satisfied, the mother is better placed to advocate for her children and ensure their physical, emotional, and psychological safety, security, and well-being.

I find the children’s well-being is best fulfilled by relocating to Kelowna with their mother notwithstanding the impact this move will have on their relationship with their father. In making this decision I considered the opposing scenario, which would have the children stay in Calgary with the father notwithstanding the impact it would have on their relationship with their mother.

I am therefore allowing the mother’s application to relocate the children to Kelowna. [ 96 ] I believe that with appropriate direction, the children can still relocate while enjoying a supportive and meaningful relationship with the father. Both parents have a role in ensuring that the children remain emotionally connected to their father. In the end I am satisfied that they can do this. [ 97 ] My final comment is this. It is imperative that the mother include the father in the children’s lives.

As mentioned earlier, the mother must make an intentional effort to include the father in the children’s educational and emotional journey while in Kelowna. She must give him the opportunity to be fully informed of the children’s wellbeing. Having said this, I find the mother did give the father an opportunity to see the children while they were in Kelowna. It may be the opportunities did not work for the father or that he envisioned the access to the children would be easier and less complex.

In my view, monthly access is not viable, but I impress upon both parents the importance of being mindful of the other parent’s need to be a meaningful presence for their children. Empathy can go a long way to breaking down communication barriers.

Conclusion [ 98 ] Accordingly, I make the following directions to implement the Relocation Order as of January 3, 2024: • The mother shall have primary care of the children in Kelowna; • The mother shall advise the father of her current address and any future addresses should her residence change; • The mother shall advise the father of any major educational or health-related issues affecting the children within a reasonable time after she is aware of them; • The mother shall consult with the father on all major decisions affecting the children such as educational and health-related decisions including but not limited to the children’s psychological and emotional well-being.

The goal is for the parents to mutually agree on these decisions but if agreement is not possible or practicable, the mother shall have final decision-making authority; • For non-major decisions, the mother shall have decision-making authority on a day-to-day basis while the children are in her care unless the children are in the care of the father at which point the father shall have decision making authority; • The mother shall inform the father, in writing, the names and contact information for the children’s school, teachers, medical, health, and dental professionals and any other professionals working with children.

The father may speak to these professionals directly about the children’s progress and wellbeing. However, the father shall not advise these professionals to act on his direction alone; • For greater clarity, the mother shall advise the father of the children’s physical and mental health-related appointments and provide consent for the father to speak to any health or medical professional; • For greater clarity, the mother shall provide the father with the children’s school information such that the father has access to the children’s teachers and is aware of the children’s educational programming.

The mother shall also make the school aware of the father’s need to be involved in any information the school might send regarding the children’s educational and psychological needs while at school; • The father shall provide to the children’s school in Kelowna any information from the children’s previous school in Calgary, unless the mother is satisfied that he has access to this information; • The mother will advise and consult with the father before registering the children in extra-curricular activities including summer or holiday organized activities such as camps.

Similarly, when the children are in the care of the father, the father shall advise and consult with the mother before registering the children in extra-curricular activities. The goal is for both parents to agree to these activities but should there not be agreement, the mother has final decision-making authority; • The parties shall communicate on the children’s health and well-being, education, and parenting arrangements in writing and through email. The parents should only communicate by text messaging when there is an urgent or emerging situation and email is not practicable;

• The father shall have parenting time with children during the children’s school holiday periods, at least one month during the summer holidays and, such further and other parenting time agreed to by the parties.

The mother shall not unreasonably withhold parenting time from the father; • The children’s passport shall remain in the custody of the mother who shall not unreasonably withhold the passport from the father should he require it for travel with the children; • The father shall advise the mother of any travel arrangements with children at least 48 hours in advance of any travel that requires children’s passport.

The mother shall not unreasonably withhold consent to the father for such travel; • The mother shall facilitate and encourage the children to communicate with the father via telephone, FaceTime, Skype, email or any other approved form of digital communication. • The mother shall promote the children’s access to their extended family members in Calgary; and • Neither the mother nor the father shall make any derogatory comments about the other party in front of children or within children’s hearing.

Neither the mother nor the father shall discuss the relocation hearing, the content of the relocation judgment, or any other matter relating to the litigation between the parents. [ 99 ] Considering child support and

section 7 expenses are an outstanding issue, I am not ordering the sharing of travel expenses. I will leave that to a further application. [ 100 ] I thank both counsel for their assistance. Heard on the 24 th day of November, 2023. Dated at the City of Calgary, Alberta this 7 th day of December, 2023. Lisa A. Silver J.C.K.B.A. Appearances: Jesse Fear for the Applicant Jessica Nelson for the Respondent/Cross-Applicant