NT v CLH, 2023 ABKB 379

Court of King’s Bench of Alberta Citation: NT v CLH, 2023 ABKB 379 Date: 20230622 Docket: FL09 01203 Registry: Peace River Between: NT Plaintiff - and - CLH Defendant _______________________________________________________ Reasons for Decision on Interim Application with Oral Evidence of the Honourable Justice D.A. Yungwirth _______________________________________________________ I. Introduction [ 1 ] This application and cross-application were heard in Peace River, Alberta on May 5, 2023. In addition to the Affidavit

evidence provided by each party, the Court heard oral evidence from each party. [ 2 ] On May 5, 2023, the Court granted the mother’s Application for the children to move with her to Cold Lake, Alberta. Though a decision was given from the Bench on May 5, 2023, the Court promised written reasons on the relocation decision so that the basis of the decision could be clearly set out. [ 3 ] In addition, the Court must provide a decision on the balance of the issues before the Court on May 5.

These include determination of income for support purposes, ongoing and retroactive child support, and ongoing spousal support. [ 4 ] For the father’s parenting time considering the relocation decision, the Court requested submissions from Counsel, which have been provided. The Court also requested submissions on costs, which have also been provided. II. Background Facts [ 5 ] For this interim application, the Court finds the facts indicated below. [ 6 ] The parties separated sometime between August of 2021 and January 1, 2022, after cohabiting for 11 years, with a brief period of separation in 2014.

The father moved out of the home in August of 2021, but the parties continued to use the joint bank account until January of 2022. [ 7 ] The parties have two children: GT, age 12, and BT, age 5. [ 8 ] At the time of the Application, the mother was working as a safety officer for two employers, MacMillan Constructions Ltd., and R. Osmond Tree Services Ltd. She was working a total of 72 hours every two weeks. [ 9 ] Since February 3, 2015, the father has worked for Canadian Natural Resources Limited as a power engineer. He currently works a 7 days on and 7 days off rotation.

The father stays in a camp that is roughly a 6-hour drive away from Peace River during his work shifts. He is only available to parent the children on 6 days of 14 because of his work

schedule and the distance he must travel to and from home for his employment. [ 10 ] Following separation, the children resided primarily with the mother in the family home. [ 11 ] On March 21, 2022, the mother filed an application for a parenting order, child support, spousal support, and a declaration of irreconcilability. She sought an order that she have primary care of the children with reasonable parenting time for the father. She also sought shared decision making with the father. At that time, the father was residing with his parents and had not had overnight parenting time.

The explanation for the father’s reduced parenting time varies, with the father alleging that the mother was restricting his parenting time and the mother alleging that the father did not seek very much parenting time. [ 12 ] In response, the father filed a cross-application seeking shared parenting of the children on a week on/week off basis, with exchanges to occur on Tuesdays. He also sought shared decision making. [ 13 ] On May 5, 2022, a Consent Interim Without Prejudice Child Support Order was granted by Davidson J.

Guideline incomes were set at $56,000 for the mother and $185,000 for the father, and child support was set at $1,197.69 commencing Friday May 13, 2022, and payable every second Friday thereafter until further order.

Section 7 expenses were pro-rated 76.76% for the father and 23.24% for the mother. [ 14 ] Also on May 5, 2022, a Consent Interim Without Prejudice Parenting Order was granted by Davidson J. That Order provided, among other things, for day-to-day care of the children to be with the mother and parenting time for the father on alternate weekends from Friday after school to Sunday at 7:00 pm. The Order also provided for Facetime contact between the father and children on Wednesdays at 7:00 pm and Facetime contact between the mother and children on Saturdays at 7:00 pm.

The parties were ordered to communicate through a parenting app, Our Family Wizard. [ 15 ] On May 16, 2022, an Interim Order was granted by Simpson J setting the father’s income at $185,000 and the mother’s income at $56,000.

He ordered spousal support of $1,800 per month commencing June 2022 (paid by payments of $870.77 bi-weekly). [ 16 ] On July 21, 2022, Simpson J granted a Consent Vary Interim Without Prejudice Parenting Order that confirmed day-to-day care with the mother, alternate weekend parenting time for the father, Facetime contact as previously ordered, and summer parenting time for the father from July 27, 2022 to August 8, 2022 and additional dates in July, August, and September, 2022.

Except for these additions/changes, the May 5, 2022 consent parenting order remained in place until this application was filed. [ 17 ] On February 9, 2023, the mother filed her application for leave of the Court to relocate with the children to Cold Lake, Alberta. She had received a job offer from a previous employer, for an employment opportunity as a safety coordinator in Cold Lake, Alberta. The original offer was for her employment to commence as early as March 30, 2023.

That date was extended as the hearing date for this Application was pushed back. [ 18 ] The new job offers the mother a $30,000 annual salary increase, more benefits, and flexibility to allow her to continue in her primary caregiver role to the children. The mother’s career path as a safety coordinator had been altered by her role in the marriage, having been the parent primarily responsible for the needs of the children and the running of the home. She took a full year of maternity leave with each child. She took on a part time position with Macmillan Construction Ltd. in June of 2013.

She took on a second job with R. Osmond Tree Services in May of 2021. Neither company requires a full-time safety coordinator and neither company has capacity to offer advancement. [ 19 ] In addition to her relocation application, the mother is seeking a parenting order defining the father’s parenting time if the

relocation is permitted, an order setting the father’s Guideline income at $221,191, with child support retroactive to April 1, 2022 andongoing, and an order for spousal support to continue in accordance with the previous Order. [20] The father filed a cross-application on March 30, 2023, seeking an order for alternate week shared parenting and otherparenting orders. He also asks that his income be set at $198,480 and that the mother’s income be set at $63,689, with child support to bepayable pursuant to

section 9 of the Guidelines. III.

Applicable Legal Principles on Relocation Issue [21] The 2022 Supreme Court of Canada decision of Barendregt v Grebliunas, 2022 SCC 22, confirms at para 110, that the case provided an opportunity to bring the common law framework in line with the amended Divorce Act, RSC 1985, c. 3 (2nd Supp) to assistjudges in dealing with future mobility cases. [22] For relocation cases under the Divorce Act, the Court confirmed the relocation framework at paragraphs 151-155 of the case: [151] In light of the jurisprudential and legislative refinements, the common law relocation framework can be restated as follows. [152] The crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional, andpsychological safety, security, and well-being.

This inquiry is highly fact-specific and discretionary. [153] Our jurisprudence and statutes provide a rich foundation for such an inquiry: see, for example, s. 16 of the Divorce Act. A courtshall consider all factors related to the circumstances of the child, which may include the child’s views and preferences, the history ofcaregiving, any incidents of family violence, or a child’s cultural, linguistic, religious, and spiritual upbringing and heritage.

A court shallalso consider each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, andshall give effect to the principle that a child should have as much time with each parent, as is consistent with the best interests of thechild. These examples are illustrative, not exhaustive.

While some of these factors were specifically noted under Gordon, they havebroad application to the best interests of the child. [154] However, traditional considerations bearing on the best interests of the child must be considered in the context of the uniquechallenges posed by relocation cases.

In addition to the factors that a Court will generally consider when determining the best interests ofthe child and any applicable notice requirements, a Court should also consider: • the reasons for the relocation; • the impact of the relocation on the child; • the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order andthe level of involvement in the child’s life of each of those persons; • the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside; • the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decisionmaking responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travelexpenses; and • whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order hascomplied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of futurecompliance.

The Court should not consider how the outcome of an application would affect either party’s relocation plans — for example, whetherthe person who intends to move with the child would relocate without the child or not relocate. These factors are drawn from s 16.92(1)and (2) of the Divorce Act and largely reflect the evolution of the common law for over 25 years. [155] As I have explained, several pillars underlying the Court’s reasoning in Gordon have shifted over time, leading courts and nowlegislatures to refine, modify, and supplement the Gordon factors.

These refinements leave us with a clear framework going forward. [23] Following Barendregt, the recent Alberta Court of Appeal decision in Nurmi v Nurmi, 2023 ABCA 123, dealt with theapplication of the burden of proof on an interim application for relocation made pursuant to the Divorce Act. Paragraphs 6 through 8, areset out below. [6] The Divorce Act amendments related to relocating became effective March 1, 2021: sections 16.9-16.96. These sections addressboth procedural and substantive requirements of a relocation application.

As the Supreme Court of Canada noted, these amendmentscodify both the legal framework first articulated in Gordon v Goertz, (SCC), [1996] 2 SCR 27 for determining whetherrelocation is in the best interests of the child and also the principles that have developed after 25 years of applying Gordon v Goertz:Barendregt v Grebliunas, 2022 SCC 22 at paras 105-110. One of these areas relates to burden of proof as discussed below. [7] Portions of the Divorce Act relevant in this case include: (

a) Section 16.91(1)(

a) gives the courts authority to authorize relocation. It provides that a person who gives notice asprescribed by s 16.9 may relocate a child where authorized by a court. (

b) In deciding whether to authorize a relocation, courts must determine whether it is in the best interests of the child. To do so,courts must consider numerous factors provided in s 16(3) and 16.92(1).

(

c) Section 16.92(2) prevents courts from considering whether the parent who intends to relocate would (or would not) relocate if their application is denied (i.e., whether they would still move if their child was not allowed to move with them). (

d) Section 16.93 provides the burdens of proof for courts to apply in relocation applications. The burden changes depending on the circumstances. For instance, if the child spends equal time with each parent, the burden falls on the parent wanting to relocate to prove that relocation would be in the best interests of the child: s 16.93(1). If there is a primary caregiver with whom the child spends the “vast majority” of their time, and the primary caregiver wants to relocate, the party opposing the relocation has the burden to show relocation would not be in the best interests of the child: s 16.93(2).

In all other cases, the parties “have the burden of proving whether the relocation is in the best interests of the child”: s 16.93(3). [8] In effect, the burden of proof

section recognizes that in the post Gordon v Goertz jurisprudence, relocation was more likely to be approved when the clear primary caregiver for a child sought to relocate. The parent who cares for a child on a daily basis is in a unique position to assess what is in their best interests: Barendregt at paras 119, 121 .

Section 16.93(2) converts that practice into a legal presumption. Such a presumption brings clarity to the law, but do not relieve the chambers judge of the obligation to determine the best interests of the particular child in the particular circumstances of the case: Barendregt at para 123 . The ultimate test to be applied in relocation cases: The crucial question is whether relocation is in the best interest of the child, having regard to the child’s physical, emotional, and psychological safety, security, and well-being. The inquiry is highly fact-specific and discretionary.

Barendregt at para 152 : [ 24 ] Before moving to the issues and analysis in this case, the case of CR v PS , 2022 ABQB 410 , is noteworthy. In that case, at paras 59 through 61, Graesser J noted the following regarding the impact of the Divorce Act changes on relocation applications under the Family Law Act : [59] I have not been made aware of any authority on the impact of the Divorce Act changes on mobility applications under the Family Law Act . I know of no reasons why, in principle, children of unmarried parents should be treated differently from children of married parents.

Mobility affects everyone the same, whether marriage is involved are not. Children of unmarried parents love their parents just as much as children of married parents, and their parents give no differential treatment based on marital status. Parents in committed common law marriages undoubtedly love their children the same as do committed married parents. [60] The specified factors in s 18 of the Family Law Act do not purport to be the only considerations to be taken into account on applications under that legislation. Gordon v Goertz prefaces its list of considerations with “inter alia”.

In my view, the Court should consider the recent amendments to the Divorce Act as relevant considerations in Family Law Act applications to the extent that they are appropriate to the facts and issues. [61] I do not think I can take the same approach to the new Divorce Act provisions on onus of proof, and for the purposes of this application I will hold the Applicant to the normal balance of probabilities test for her mobility application regardless of the present status of parenting time. [ 25 ] Turning to this case, we are under the Family Law Act , not the Divorce Act .

There is an existing interim parenting order that the mother seeks to vary. [ 26 ] Barendregt confirmed at para 106 , that Courts have applied the Gordon framework in cases governed by provincial Family Law Acts even though Gordon concerned an application under the Divorce Act . [ 27 ] At paragraph 120, the Supreme Court of Canada in Barendregt states: [120] As for any legal presumption in relocation cases, the Court in Gordon noted that the wording of the Divorce Act belied the need to defer to the custodial parent.

Rather, the Act expressly stipulated that the judge hearing the application should be concerned only with the best interests of the child, and the variation provisions did not place a burden on any parent at the merits stage of the analysis: paras. 37 and 39 [ 28 ] The Family Law Act in Alberta has not been amended to bring it in line with the amendments to the Divorce Act . [ 29 ] Accordingly, the mother in this case has the burden of establishing that there has been a change in circumstances since the previous parenting order was granted.

If she meets that burden, the Court’s focus is then on the crucial question of whether relocation is in the best interests of the children. Both parents have provided evidence on this point and all evidence has been considered. IV. Issues for Determination by the Court 1. Has there been a change in circumstances? [ 30 ] Given the roles adopted by the parties during the marriage, the mother has been the primary caregiver to the children since they were born. The father was the main breadwinner for the family.

That continued following the separation of the parties. [ 31 ] The parties consented to an Interim Without Prejudice Parenting Order on May 5, 2022. That Order confirmed the mother’s primary caregiver status and has been followed by the parties. [ 32 ] The mother’s intended move from Peace River, Alberta to Cold Lake, Alberta for an employment opportunity is a material change in circumstances for the children. The mother has met the burden on her in this regard.

2. Is it in the best interests of the children to relocate from Peace River, Alberta to Cold Lake, Alberta with the mother? [ 33 ] As the parties are not married, the Court will begin by applying the best interests criteria set out in s 18 of the Family Law Act : 18(1) In all proceedings under this Part, the court shall take into consideration only the best interests of the child.

(2) In determining what is in the best interests of a child, the court shall (

a) ensure the greatest possible protection of the child’s physical, psychological, and emotional safety, and [ 34 ] Though both parents have historically had a role in this regard, the mother has been the parent who has ensured the protection of the children’s physical, psychological and emotional safety on a full-time basis since they were born. The father’s obligations as primary breadwinner for the family have taken him away from the day-to-day care of the children while he is away working. This is not a criticism of the father. It is the reality of the life these parties chose for their family.

The mother’s new employment opportunity will enable her to continue to protect the children’s physical, psychological and emotional safety as she has done since their birth. (

b) consider all the child’s needs and circumstances, including (

i) 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, [ 35 ] The father argues that Peace River and the connections that the children have in that location provides stability for them. However, removing the children from their primary caregiver is far more destabilizing for the children than removing them from the stability offered by Peace River. (ii) the history of care for the child, [ 36 ] As indicated earlier, the mother has been the primary caregiver to the children since they were born.

This is what the children are accustomed to. (iii) the child’s cultural, linguistic, religious, and spiritual upbringing and heritage, [ 37 ] There is no evidence on this consideration. (iv) the child’s views and preferences, to the extent that it is appropriate to ascertain them, [ 38 ] The only evidence in this regard is a letter from GT’s counsellor that indicates that GT would prefer not to leave Peace River but understands why his mother wishes to move to Cold Lake. The same letter highlights the difficulties in the relationship between GT and his father.

Though, with work, this may improve over time, this raises a concern regarding changing GT’s primary caregiver from his mother to his father. I also note that the letter from the counsellor is hearsay, and is of limited weight without the benefit of direct evidence and cross-examination of the counsellor. (

v) any plans proposed for the child’s care and upbringing, [ 39 ] It is clear from the evidence, that the mother has done the planning required for the move to Cold Lake with the children. The evidence indicates that she has considered the need for flexibility with her employment so that she is able to meet the needs of the children. She has also considered schools, accommodation, extra-curricular activities, and ongoing counselling for GT. She has also considered and proposed a parenting

schedule for the father. The father’s plan, should he have the care of the children if the mother moves without them, is to have his parents care for the children for every 8-day work rotation when he is not available to care for them. (vi) any family violence, [ 40 ] For this consideration, and though there were some references to the treatment by the father toward the mother, allegations of abuse in the relationship are denied by the father. At the oral hearing, the evidence provided was not sufficient to allow the Court to draw any conclusions on this issue.

Accordingly, there is insufficient evidence on which the Court can conclude that there has been family violence. This consideration does not therefore weigh into the analysis for this Interim Order. (ix) 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, [ 41 ] It is clear that both children have a positive relationship with each parent and with their extended families.

There is no indication that if the children move to Cold Lake with the mother, they will not continue to maintain a meaningful relationship with their father and with their extended family in both locations. The mother’s parents reside approximately 16 kilometres away from Cold Lake. (

x) the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities, and entitlements of guardianship, and [ 42 ] Each parent is willing to exercise the powers, responsibilities, and entitlements of guardianship and they can continue to do so if they maintain shared decision-making for the children. (xi) any civil or criminal proceedings that are relevant to the safety or well being of the child.

[ 43 ] There is no evidence of any civil or criminal proceedings that are relevant to the best interests of the children. [ 44 ] The additional best interests considerations under the Divorce Act are set out below. 16.92

(1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in

section 16 , (

a) the reasons for the relocation; (

b) the impact of the relocation on the child; (

c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons; (

d) whether the person who intends to relocate the child complied with any applicable notice requirement under

section 16.9, provincial family law legislation, an order, arbitral award, or agreement; (

e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside; (

f) 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 (

g) 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. [ 45 ] In this case, the reasons for the mother’s move to Cold Lake are an employment opportunity with a previous employer in her field, with significantly higher pay and other benefits, including RRSP contributions, company vehicle, fuel card, mobile phone, bonuses, and annual raises.

As indicated above, the move to Cold Lake will have an impact on the children in terms of the removal from their community, school, and friends, but that impact will not be as significant as a move away from their primary caregiver. The mother has been primary caregiver to the children since they were born. The father has been available to the children when he is off work and at home, but his work obligations have not permitted him have a primary caregiver role to the same extent as the mother.

The children have a relationship with their paternal grandparents in Peace River and they will continue to do so when they are with the father. They will also continue to have a relationship with their maternal grandparents, who reside near Cold Lake. [ 46 ] There is no evidence that the mother did not provide any required notice for the move.

In addition, there has been a Consent Parenting Order in place for a year, with reasonable compliance by both parents. [ 47 ] The mother has indicated that she is open to a reasonable parenting arrangement for the father, and she agrees that the parties will continue to have joint decision making. [ 48 ] I have also considered that if the mother moves to Cold Lake, the shared parenting proposed by the father is not practical or reasonable because the parents will each be living in a different city.

The children cannot live in one city for 8 days and another city for 6 days on a 2-week rotation. [ 49 ] Nor is it in the best interests for the father to have the primary care of the children, because as explained above, his employment circumstances do not permit him to do so. [ 50 ] Finally, I have considered the evidence indicating that the family home may have to be sold and that this may cause some disruption for the children if they remain in Peace River. [ 51 ] The costs for the father having parenting time with the children are considered below. [ 52 ] This Court has not considered whether, if the children’s relocation was prohibited, the mother would relocate without the children or not relocate. [ 53 ] After considering the above factors, I find that it is in the best interests of the children to relocate with their mother to Cold Lake, Alberta. [ 54 ] Because there were submissions on burdens on May 5, 2023, I would only add that given the Court’s finding that the mother has been the primary caregiver to the children since birth, if the new Divorce Act provisions on burden were applicable to this case, the father would have failed to meet his burden. 3.

If the children move to Cold Lake, Alberta with the mother, what parenting arrangement is in their best interests in terms of time with their father? [ 55 ] As the Court has determined that it is in the best interests of the children to move with the mother to Cold Lake, the father’s parenting time must be determined. [ 56 ] The

schedule should, as far as possible, allow the father to have parenting time on alternate weekends, extended for long weekends and other non-school days attached to those weekends. The location of the father’s parenting time will have to consider the disruption to the children of the travel time, as well as the disruption to the children of staying in hotels in Cold Lake on school nights.

The

schedule below takes these things into account while considering the proposals of both parents: [ 57 ] The father’s parenting time will occur as follows, starting in July of 2023: (

a) July – the father will have 2 weeks of parenting time in July 2023, to be determined with assistance of Counsel, provided that the father will not be working during his 2 weeks in July. For the month of July, the exchanges will occur in Slave Lake, Alberta unless the parties agree otherwise. The exchange times will be as agreed by the parties. (

b) August – The father will also have 2 weeks of parenting time in August 2023, to be determined with assistance of Counsel, provided that the father will not be working during his 2 weeks in August. The 2 weeks in August will not run consecutive to the 2 weeks in July. For the month of August, the exchanges will occur in Athabasca, Alberta unless the parties agree otherwise. The exchange times will be as agreed by the parties. (

c) September 13 (Wednesday evening from pick-up after school until 7:00 pm), to occur in Cold Lake. September 14-16 in Cold Lake, from pick up after school on September 14 to 3:30 pm on September 16. With this pattern, the children will only have to stay in a hotel for 2 nights (only one of which is a school night in the normal course) when the father has his parenting time with the children in Cold Lake. This will provide minimal disruption to their school routines during the week. (

d) September 29 to October 2 in Peace River, with exchanges to occur in Slave Lake unless the parties otherwise agree. The exchange times will be as agreed by the parties. (

e) October 11 (Wednesday evening from pick-up after school until 7:00 pm), to occur in Cold Lake. October 12-14 in Cold Lake, from pick-up after school on October 12 to 3:30 pm on October 14. (

f) October 27 to October 29 in Cold Lake, from pick-up after school on October 27 to 3:30 pm on October 29. (

g) November 9 to 13 in Peace River, with exchanges to occur in Athabasca, Alberta unless the parties otherwise agree. The exchange times will be as agreed by the parties. (

h) November 23 to 26 in Peace River, with exchanges to occur in Athabasca unless the parties otherwise agree. The exchange times will be as agreed by the parties. (

i) December 6 (Wednesday evening from pick-up after school until 7:00 pm), to occur in Cold Lake. December 7-9 in Cold Lake, from pick-up after school on December 7 until 3:30 pm on December 9. (

j) December 22 to 24 in Cold Lake, from pick-up after school on December 22 until 3:30 pm on December 24. (

k) January 2-7, 2024, in Peace River, with the exchanges to occur in Slave Lake unless the parties agree otherwise. The exchange times will be as agreed by the parties. (

l) January 18 to 21, 2024, in Peace River, with the exchanges to occur in Athabasca unless the parties agree otherwise. The exchange times will be as agreed by the parties. (

m) January 31 (Wednesday evening from pick-up after school until 7:00 pm), to occur in Cold Lake. February 1-3 in Cold Lake, from pick-up after school on February 1 until 3:30 pm on February 3. (

n) February 14-19 in Peace River, with the exchanges to occur in Slave Lake unless the parties agree otherwise. The exchange times will be as agreed by the parties. (

o) February 28 (Wednesday evening from pick-up after school until 7:00 pm), to occur in Cold Lake. February 29 to March 2 in Cold Lake from pick-up after school on February 29 until 3:30 pm on March 2. (

p) March 15-17 in Cold Lake, from pick-up after school on March 15 until 3:30 pm on March 17. (

q) March 26 to April 1 in Peace River, with the exchanges to occur in Athabasca unless the parties otherwise agree. The exchange times will be as agreed by the parties. (

r) April 12-14 in Cold Lake, from pick-up after school on April 12 until 3:30 pm on April 14. (

s) April 25 to 28 in Peace River, with the pick-up to occur in Lac La Biche, Alberta and the drop off to occur in Slave Lake unless the parties otherwise agree. The exchange times will be as agreed by the parties. (

t) May 10-12 in Cold Lake, from pick-up after school on May 10 until 3:30 pm on May 12. (

u) May 22 (Wednesday evening from pick-up after school until 7:00 pm), to occur in Cold Lake. May 23-25 in Cold Lake, from pick-up after school on May 23 to 3:30 pm on May 25. (

v) June 6-9 in Peace River, with the exchanges to occur in Athabasca unless otherwise agreed to by the parties. The exchange times will be as agreed by the parties. (

w) June 19 (Wednesday evening from pick-up after school until 7:00 pm), to occur in Cold Lake. June 20 to 22 in Cold Lake, from pick-up after school on June 20 to 3:30 pm on June 22. (

x) For the summer of 2024, the father will have 2 consecutive weeks in July and 2 consecutive weeks in August, with the July and August weeks not to be taken consecutively. He must provide the mother with notice by May 1, 2024, as to which 4 weeks he wishes

to have for summer parenting time. [ 58 ] By June 1, 2024, the parties will attend a dispute resolution process to map out the father’s parenting time for September 2024 through August 2025. [ 59 ] GT will continue his counselling with his current counsellor. As this counselling will occur remotely, GT will be given a private space for his counselling so that no one can overhear the counselling sessions. [ 60 ] GT and the father should also have counselling to address any issues in their relationship.

For such counselling, the same requirements for GT to have privacy during the counselling will apply. [ 61 ] The current Facetime accommodations will continue to apply for both parents. [ 62 ] The parents will continue to share decision making. [ 63 ] If the parties can manage it from a financial perspective, they should have counselling to learn better communication and co- parenting skills, as this will benefit the children. [ 64 ] Both parents will be advised of any health-related appointments and extra-curricular activity schedules for both children.

Accommodations will be made for both parents to attend if practical. [ 65 ] If the circumstances change such that both parents are residing in the same community, this interim parenting order can be reviewed. 4. What are the Guideline incomes of the parties for support purposes? [ 66 ] The mother’s Guideline income in 2022, was $63,689. [ 67 ] The father’s Guideline income in 2022, was $238,771. [ 68 ] The parties’ incomes for 2022 are the most recent full year indication of income information for the Court. [ 69 ] The father has been employed by Canadian Natural Resources Limited since February 3, 2015.

The father’s evidence is that his base income is $133,307. His additional income appears to come from overtime work and stock shares. [ 70 ] The father’s historical income was $252,828 in 2019, $209,560 in 2020, $222,165 in 2021, and $238,771 in 2022. [ 71 ] However, the part of the father’s income that is from an annual stock share vests in January of each year. The father’s evidence is that the stock share for 2023 was only $18,121.54, as compared to $45,873.48 in 2022.

That is a reduction of $27,751.94. [ 72 ] I note that the father had almost $37,000 of overtime income in 2022 – at a time when he had the children in his care on alternate weekends.

Only time will tell whether the mother’s move to Cold Lake results in a reduction of overtime work for the father. [ 73 ] The mother submits that the father earns in excess of $220,000/yr. and that his Guideline income should be set at no less than $220,000. [ 74 ] The mother is also critical of the father deducting farming expenses since 2020 and says that the father is not a farmer. [ 75 ] For the purposes of this interim application, I am setting the father’s Guideline income at $211,000, which takes into account his history of earnings and reflects the reduction in stock share value received in 2023.

I set the mother’s Guideline income at $74,000 to reflect her increased income for half of 2023, given her new employment. 5. What is the amount of ongoing child support that should be paid? [ 76 ] Based on a Guideline income of $211,000 for the father, the monthly s 3 child support amount is $2,938. That may be paid by bi-weekly payments of $1,356 commencing on the father’s first pay date in July

Section 7 expenses will be pro-rated between the parties, with the father to pay 74.04% of those expenses and the mother to pay 25.96%. 6. What is the amount of ongoing partner support that should be paid, and should the father’s parenting time related costs result in a reduction of any of the support that he is paying? [ 77 ]

Section 16.95 of the Divorce Act permits the Court to apportion parenting time costs between the parents. 16.95 If a court authorizes the relocation of a child of the marriage, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child. [ 78 ] I apply that approach in this case, notwithstanding that the parties were not married. The father’s increased costs for his parenting time should be apportioned between the parties. Part of this apportionment is being accomplished by the sharing of driving responsibilities.

[ 79 ] Child support should only be reduced as a last resort, as it should involve a consideration of s. 10 of the Guidelines. [ 80 ] Accordingly, any additional apportionment of parenting costs is best done through a reduction of partner support. [ 81 ] In this case, the father is paying $1,800 per month in spousal support.

I confirm for this interim decision, that the mother continues to be entitled to partner support on both a compensatory and non-compensatory basis given her role during the period of cohabitation and the disparity in the incomes of the parties at the time the relationship broke down. [ 82 ] The costs of accommodation in Cold Lake while the father is having his parenting time there is a significant cost for the father. He has estimated total parenting time costs at just over $2,000 per month, which includes mileage and hotel costs.

I am, however, considering that the mother is sharing some of the driving costs due to the locations for the exchange when the father’s parenting time occurs in Peace River. She will therefore already be sharing mileage costs with the father. [ 83 ] Accordingly, when considering the ongoing partner support, the increased costs for the father’s parenting time should be considered. The mother’s costs for transporting the children part of the way for the father’s parenting time should also be considered. The mother’s increased income is also a factor to be considered in this case.

The Spousal Support Advisory Guideline ranges at the income levels I have set are $1,244 at the low end of the range, $1,916 at the mid-range of the range, and $2,589 at the high end of the range. After considering all of these things, I set ongoing partner support on an interim basis at $900 per month. The reduction to something below the low end of the SSAG’s has the effect of passing on to the mother, some of the father’s increased costs of parenting time as a result of the mother’s move to Cold Lake.

The $900 per month may be paid by bi-weekly payments of $415.38 commencing on the father’s first pay date in July 2023. [ 84 ] As this is an Interim Order, there will be no duration set for the partner support. 7. Is there any retroactive child support payable and if so, what is the commencement date for that retroactive child support? [ 85 ] The father acknowledges that he underpaid child support in 2022, in the sum of $24,078. Given what I have set for his income in 2023, he underpaid child support by a total of $2,058 for the first 6 months of 2023. These two amounts total $26,136.

This amount will be paid by the father to the mother from his share of the family property when it is divided. 8. Are there any costs payable by either party to the other, and if so, in what amount? [ 86 ] The father submits that costs should be in the cause. [ 87 ] The mother seeks costs of $9,150, representing all steps taken since February 9, 2023. [ 88 ] The biggest issue for determination was the relocation application. The mother was the successful party on that application. There was divided success on the issue of the father’s income.

The father was successful in having his partner support reduced, with consideration of his parenting costs as a result of the move. After considering the factors set out in Rule 10.33(1) of the Alberta Rules of Court , I grant costs to the mother in the amount of $5,000, including disbursements. In doing so, I am considering the case conference on March 17, 2023, the chambers application on March 20, 2023, the questioning, and the special chambers application on May 5, 2023. Failing agreement, the trial judge will be in a better position to assess costs of the action overall.

The $5,000 will be paid within 90 days. [ 89 ] I remain seized with this matter only to the extent that any corrections are required to the father’s parenting

schedule as a result of error, or it the parties, working together wish to refine the

schedule after they have had an opportunity to consider it. This does not mean that the parties will have an opportunity to reargue the father’s parenting schedule. Heard on the 5 th day of May, 2023. Dated at the Town of Peace River, Alberta this 22 nd day of June, 2023. D.A. Yungwirth J.C.K.B.A. Appearances: Kristian Andres Harcourt Law Group for the Plaintiff

Lawren Wowk Grey Wowk Spencer LLP for the Defendant