TRAVIS ALLAN SALI Petitioner - v. -, 2023 SKKB 181

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 181 Date: 2023 08 28 Docket: FLD-SA-00289-2021 Judicial Centre: Saskatoon, Family Law Division ___________________________________________________________________________ BETWEEN: TRAVIS ALLAN SALI Petitioner - and - VANESSA JADE DENISE JOHNSON Respondent Counsel: Siobhan H. Morgan and Brittany M. Bezmutko for the petitioner Taylor Grantham for the respondent ___________________________________________________________________________ JUDGMENT GOEBEL J.

August 28, 2023 ___________________________________________________________________________ OVERVIEW [ 1 ] The parties are the parents of two young children: Teagan (born 2018) and Brody (born 2019). They never married, but cohabited in a spousal relationship from January 2015 to April 2021 in North Battleford, Saskatchewan. [ 2 ] Vanessa is originally from Cochrane, Alberta, and Travis is originally from North Battleford. They began dating in 2014 when working for the same employer in Alberta. In 2015, Vanessa moved into a residence owned by Travis in North Battleford.

This is where they resided together and started a family. [ 3 ] In April 2021, Vanessa (the mother) decided to separate and moved to Cochrane with the children while Travis (the father) was at work. He opposed the unilateral relocation and commenced a court proceeding. By interim order, the Court held that it was in the best interests of the children to remain in the mother’s primary care but directed that she exercise her parenting time in the vicinity of North Battleford.

She complied, and the parties commenced a nesting arrangement in the family home. [ 4 ] In June 2022, the parties agreed to vary this interim arrangement to follow a week-on/week-off shared parenting schedule. This allowed the mother to exercise her parenting time in Cochrane and the father to resume primary possession of the family home in North Battleford.

Recognizing that this arrangement was not sustainable in the long term, and unable to agree on a final parenting plan, the parties proceeded to trial, asking the Court to determine what final parenting arrangement was in the children’s best interests. [ 5 ] Having considered the evidence tendered and submissions made, I find that it is in the best interests of the children to reside in the mother’s primary care in Cochrane and to have generous time in the care of their father. Below are my reasons.

CHRONOLOGY [ 6 ] The parties met and began dating in 2014 when Vanessa was 21 years of age and Travis was 28 years of age. They were working for the same company in Alberta and were commuting for work. When not at the worksite, Vanessa resided with her parents in Cochrane, and Travis resided in a home he owned in North Battleford. Cochrane is located approximately 600 km from North Battleford. [ 7 ] Initially, the relationship was positive, although there were some episodes of conflict arising from Travis’ jealousy respecting Vanessa’s prior romantic relationships.

During these episodes, it was not uncommon for Travis to call her names, raise his voice and/or make derogatory comments and accusations. On one occasion, he became so enraged that he began to drive erratically and punch the steering wheel until his knuckle bled.

[ 8 ] On other occasions, when travelling for holidays or events, Travis walked away from Vanessa to calm down but, in doing so, abandoned her at a hotel, on the street or at a bar with no communication for hours on end respecting where he was or if he planned to return. [ 9 ] Vanessa testified that Travis’s treatment of her impacted her work during this early period. There were times when she would cry in the workplace or ask to leave early because she was so mentally distraught. [ 10 ] That said, these were relatively rare occasions, and Vanessa remained optimistic about the future of their relationship.

In January 2015, she moved into Travis’s North Battleford residence. Shortly thereafter, Vanessa obtained employment as an office administrator at a workplace located 45 km outside of North Battleford, requiring a short commute each way. That said, she was generally unhappy with her career path and began to apply for welding programs in Alberta.

While she was accepted into one program, Travis discouraged her from attending so she never pursued it. [ 11 ] During this time, Travis, a Red Seal journeyman welder, operated his own business, Prairie Dog Welding Ltd. using a mobile welding truck to service companies working in the oil, gas and mining sectors. Most of his contracts were in Alberta. [ 12 ] The parties settled into sharing a residence and building a life together. Unfortunately, Travis’s unregulated anger continued to be a concern. On one occasion, Vanessa and Travis were at a bar with some friends in North Battleford.

Travis was making inappropriate comments about the waitress, so Vanessa decided to walk home. By the time she reached their home, Travis had arrived in a taxi. He was angry and began yelling at her. At one point, he knocked over a lamp, and his brother, Tyler, who was residing downstairs, came up to see what was going on. Travis chased him downstairs and engaged him in a physical altercation, during which time his brother received a black eye. Both Travis and Tyler describe this as a singular incident. [ 13 ] Vanessa learned she was pregnant in mid-2017. Both she and Travis were excited to become parents.

Travis took steps to set up a safe and comfortable space for the baby in their home. Teagan was born in February 2018, and Vanessa took a maternity leave from her employment. Travis was between contracts at this time (until April 2018) and assisted with Teagan’s care while he pursued work outside of the home. [ 14 ] Between April and June 2018, Travis was working in Alberta and was away from home between 10 days to two weeks at a time. When he was away, Vanessa relied on the paternal grandmother, Lennea Sali, for assistance. The grandparents lived on a farm approximately 30 km from North Battleford.

When Travis was at home on his “days off”, he would assist with parenting responsibility and household tasks although Vanessa remained primarily involved. [ 15 ] In August 2018, Travis obtained employment at a worksite near North Battleford, allowing him to be home each evening. His

schedule was 15 days on followed by 6 days off, working from 7:00 a.m. to 5:30 p.m., not including time to commute to and from work. On workdays, he could be away from home as early as 5:30 a.m. and return home as late as 7:00 p.m. When the father was home from work, the parties would share household and childcare responsibilities, although the mother would most commonly get up with Teagan in the night. [ 16 ] Vanessa learned that she was pregnant again only a few months after Teagan was born and decided to return to work early to get sufficient hours to qualify for her next maternity leave.

She returned to full-time employment in August 2018 when Teagan was seven months old. Arrangements were put in place for Teagan to attend the Learning Tree Daycare in North Battleford when the mother was at work. Teagan picked up many viruses and colds at the daycare, requiring Vanessa or the paternal grandmother to take time away from work to care for her. [ 17 ] In March 2019, Brody was born and the mother took an extended maternity leave. Her days, and nights, were busy. Brody had colic, and the two children, born only 13 months apart, had different feeding and sleeping schedules.

The father continued to work long hours away from the home but returned each evening. His

schedule continued to be 15 days on/6 days off. [ 18 ] When Travis was at home, they shared many of the parenting responsibilities, although Vanessa remained primarily responsible for parenting tasks. The paternal grandmother was happy to assist as needed and the family spent many days at the grandparents’ farm where the toddlers enjoyed playing outside and “helping” with chores. [ 19 ] In April 2020, the father’s work contract ended. The next few months were stressful for the family. The mother was on maternity leave, and the father was looking for work.

Other than two out-of-province contracts (one for three weeks and one for one week), the father’s income was solely derived from CERB (Canada Emergency Response Benefit) payments. He arranged to defer payments on their vehicles and the mortgage. [ 20 ] The mother resumed her employment in September 2020, again working Monday to Friday from 8:00 a.m. to 4:30 p.m. The children were both placed in daycare. [ 21 ] In October 2020, the father obtained full-time work at a mine in Esterhazy, Saskatchewan, a drive of approximately 500 km from North Battleford. He initially worked 15 consecutive days after which his

schedule became seven days on/seven days off. By the spring of 2021, he was working Monday to Thursday with every weekend off. He would leave for work on Sunday afternoon and return late Thursday or early Friday. [ 22 ] Sadly, conflict between the parties continued to be commonplace in the home during this time. During arguments, Travis would call Vanessa names. He criticized her cleaning standards and cooking abilities.

Vanessa testified she quickly learned that if she had an opinion that differed from Travis’s, she had to keep it to herself or risk an argument or, on occasion, the “silent treatment” for up to five consecutive days. [ 23 ] In addition to general conflict in the relationship, the parties experienced significant conflict respecting Vanessa’s extended family. As time went on, it became clear that Travis did not like them or welcome their presence in their home or their influence in their lives. Her brother and sister-in-law were prohibited from visiting at the home for many years. In addition, for the

year prior to the separation Travis forbade the maternal grandmother from coming to their home. During this time, the mother maintained relationships with her extended family through regular FaceTime calls and the odd trip to Cochrane. [ 24 ] The parties separated on April 19, 2021, when the mother took the children and relocated to her parents’ home in Cochrane while the father was at his worksite. [ 25 ] The parties provide very different versions of the events leading to the separation.

The mother says that she needed to leave with the children while the father was at work to protect herself from harm, while the father believes that she strategically and secretly relocated when he was away because she has no respect for his role as a father and to gain an upper hand in the inevitable parenting dispute. [ 26 ] The mother testified that shortly before the separation, she and the children had been in Cochrane visiting her family. One night when she was away, Travis stayed out partying with friends for an entire night and told her that they had purchased cocaine.

At about 9:00 a.m., he returned to the family home with his friend and a woman he described as a prostitute. During a phone conversation, Vanessa could hear his friend talking about doing lines of cocaine on the coffee table. She insisted that he make them leave, which he did. When she and the children returned home a few days later, the parties had a heated argument about the incident. During this argument, Travis was screaming at Vanessa with Teagan present. Teagan was upset and began pushing the father and crying for him to stop. The mother says that Travis demanded Vanessa leave the home and go to a hotel.

When she tried to pick up Teagan, he pulled her backwards and abruptly removed the upset child from her arms. She refused to leave without the children but decided to leave Travis as soon as it was safe to do so. She contacted her mother in Cochrane to ask for help. She also contacted her employer to advise that she was leaving. When the father left for his next set of workdays, the mother arranged for her parents to come to North Battleford and assist her with packing and moving her belongings, along with the children’s toys and clothing.

Once she was on the road, she notified the father by text message that she was leaving him and moving to Cochrane with the children. [ 27 ] Travis disputes this version of events. He says the separation came out of nowhere and was a complete surprise. He agrees that there was a “situation” with friends using drugs in the home when she and the children were away, but that it had occurred months earlier. He testified in detail to a calm weekend precipitating the separation.

He also tendered text messages into evidence that show that when he arrived at the worksite the night before the separation, he sent a text message to Vanessa to let her know he arrived safely and they had exchanged “I love you” messages. The next day, he was surprised to receive a text message from Vanessa that she and the children left and were staying with her parents. [ 28 ] He called her to discuss what was going on and she told him that the last time they kissed, it did not mean anything to her. She also accused him of not caring about her feelings.

The next day they did not speak or exchange messages, but on April 21, Vanessa texted Travis saying that she left because “neither of us were happy anymore and it couldn’t continue any longer.” She told him that she wanted to continue to have a relationship with him and be good parents to the children. She invited him to call that night to speak to the children. [ 29 ] That evening, they spoke on the phone and made arrangements to meet in North Battleford the following weekend.

He returned to the family home the following Thursday after work and discovered that the children’s clothing was missing, along with pictures from the walls, the children’s dishes and utensils, their bikes, scooters and toys. The mother’s personal effects and clothing were also gone. This is when he first realized that she had really “moved out”. [ 30 ] Despite these differing versions, both parties agree that they immediately began to discuss dates when the father could see the children. The first weekend after the separation, the mother drove to North Battleford with the children.

They all stayed at the family home together from Friday to Sunday. During that time, the father took the children on a bike ride and to a birthday party. They also played together at the home and with the dog. He asked for more parenting time, but she said she wanted to take the next week off because she wanted “some space”. While parenting time was not supervised, he felt that it was being dictated by her.

He did not try to stop her from leaving with the children at the end of the weekend. [ 31 ] On May 3, 2021, he sent her a text message asking her to bring the children home saying, “I don’t want them in Cochrane”. She brought the children to North Battleford the following weekend, and the children spent time with the father and grandparents. He left for work on Sunday, but she stayed over in the family home Sunday night and left for Cochrane the next day. [ 32 ] Two weekends later, she again brought them back to North Battleford.

This was Mother’s Day weekend, and they were invited to go out to the paternal grandparents’ farm to celebrate. The mother was invited but chose not to attend. The father took the children with him to the family farm. He also took them shopping to buy gifts for the mother. They all went to the lake lot for lunch. That weekend, Vanessa and Travis arranged for the paternal grandmother to babysit so they could go on “a date” and discuss their future. They also discussed ongoing parenting time. The father said he wanted to have the children for an entire week, but she refused.

He again told her he was not agreeable to her moving and said if she did not bring the children back he would have no choice but to take her to court. [ 33 ] The following weekend, he agreed to drive to Cochrane to see the children. At that time, he thought he would be able to take them back to North Battleford for the following week. He took time off work and planned to put in a garden with the children at the family home. [ 34 ] He drove to Cochrane and met with Vanessa and the children. They stayed together in a hotel for the first night.

She refused to let him take the children to North Battleford and proposed they spend a family weekend in Banff. He agreed. While they were spending time together as a family, the situation remained strained. On one occasion, when Vanessa was lying in a hotel bed with Brody, Travis leaned over her and made a choking gesture, whispering that she is “a bad person”. [ 35 ] When coming back from Banff, he asked again if he could take the children to North Battleford and she said no. He asked if he could have the kids in the hotel by himself, and she said that Teagan was sick.

He asked her to bring Brody, but she said that Brody did not want to come. She invited him to come to her parents’ house instead. He did go to their home and agrees that Teagan was sick. He found it odd that Vanessa’s parents had confined themselves to their bedroom and knocked on their door and said, “This is

your house, and you can come out if you want to”. They did not. [ 36 ] Vanessa and Travis took the children for a walk together, stayed at the hotel together that night and went on a picnic at the park the next day before he left. He also asked for the children on the following weekend. Vanessa agreed on the condition that he travel to Cochrane to see them. The following weekend, they stayed together in the hotel in Cochrane. They took the children to the zoo and a park. [ 37 ] During this time, Travis was working Monday to Thursday in Esterhazy.

The drive to Cochrane was 11 hours long – 1,136 km from his worksite and approximately 600 km from his home. [ 38 ] The father testified that he tried to see the children for the following two weekends in June, but the mother refused, saying she had plans to attend a party for her sister’s graduation and to go camping with her parents. [ 39 ] The following weekend was Father’s Day weekend. By this point, the children had not seen their father for three weeks.

They again made arrangements for the father to drive to Cochrane to spend time with the children. [ 40 ] In the intervening time, Vanessa had been served with a petition and court application seeking the children’s return to Saskatchewan. Understandably, each party was suspicious of the other. Travis insisted on being informed on every aspect of the children’s lives and was feeling squeezed out. He sent numerous consecutive texts, accusing Vanessa of withholding information and demanding that his parenting rights be respected.

On the other hand, Vanessa was worried that Travis was case-building and accumulating information to use against her. She was uncomfortable with the volume of text messages and deeply concerned that the father would unilaterally take the children back to North Battleford if given the opportunity to do so. [ 41 ] Vanessa was also suspicious that Travis was monitoring her. He told her he could record their phone conversations. She suspected he was tracking her vehicle.

She also noticed that he had used their joint account to pay a private investigator and noted a stranger parked outside of her parents’ home who appeared to be taking videos of the house. It turned out that her suspicions were accurate. [ 42 ] Just prior to the Father’s Day weekend, Vanessa texted Travis and told him that his parenting time would have to be supervised. This is the first time that she made this demand. The father texted back, “okay if that’s necessary to see them”. He found the request odd and mentioned it to his extended family, who were concerned about the situation.

His brother offered to go with him for the visit. At one point during the drive, Travis sent Vanessa numerous photos of the inside of his truck to confirm that he was travelling alone. This was untrue. He also sent the mother a text asking whether she would allow his family to visit with the children if they were willing to travel to Cochrane. Assuming it would be pre-arranged she responded that she would be happy to and that they could even come for dinner. They agreed to meet at a restaurant the next morning and then take the children to a petting zoo.

She bought four tickets. [ 43 ] Travis and his brother arrived in Cochrane after midnight but decided to drive past the mother’s home when they arrived. [ 44 ] The next morning the mother, father and children met at the restaurant. After a few minutes, and without mentioning anything to the mother, Travis called his brother and told him to come into the restaurant. The mother says that this was the first she had heard about his brother attending and became concerned that he was going to try to take the children. She sent a text to her mother raising concerns and asking that her father come to the restaurant.

When Tyler arrived, the children were excited to see him and gave him hugs. They all sat at the same table. When they left the restaurant, Travis leaned towards Vanessa and said, “You’re going to be in really big trouble.” Travis insisted on riding in Vanessa’s car, but she would not unlock the door. Travis says that they agreed he would jump into her vehicle to help the children finish their breakfast, but Vanessa changed her mind. Vanessa testified that he became angry and started recording her and the children with his phone.

She started to cry and asked him to leave. [ 45 ] By then her father had arrived, and Travis began to walk away but asked his brother to record the interaction. Vanessa got into her vehicle with the children and drove away. Travis and his brother followed closely behind her in their truck. She called her mother and asked that she meet her outside of the home but, instead, the grandmother called 911. [ 46 ] When they arrived at her parents’ home, Vanessa parked in the driveway but remained in the vehicle.

Travis came out of his vehicle and was yelling from the sidewalk that he would not come on the property or trespass. Teagan began crying uncontrollably and asking why daddy is so mad. Travis left shortly after the maternal grandfather arrived. He texted her that he was leaving. [ 47 ] Shortly thereafter, the police arrived and spoke to Vanessa, Teagan and the grandparents. Everyone was upset. The police also contacted Travis, who met them at the police station. The police advised him that he was at risk of being charged with harassment and should leave.

He and his brother drove back to North Battleford. [ 48 ] The father says he is confused about this incident. He says that the children were happy at Tim Hortons – hugged his brother and him and were okay in the car. He only saw them crying once the grandfather got into the mother’s car and when the mother was taking Teagan into the house. He says Teagan was crying out “daddy daddy” over and over. He says twice since then Teagan has made comments to him about that day – once at his house, she said, “Why didn’t you come see me?” On another occasion, she asked him, “Why did you have to go home?

I was crying for you on the couch, and you didn’t come see me.” He said he told her he had a cold and had to go home. [ 49 ] On June 19, the father sent the mother a text message asking to have FaceTime visits with the children. She agreed. [ 50 ] The father’s court application first came before the Court on June 24. It was adjourned, but the Court directed that the father have unsupervised parenting time from June 25 to 27 and July 2 to 4 pending the next hearing date. On the next court date,

the matter was reserved, but the father was granted parenting time on July 13 to 16 and July 22 to 25. [51] On August 3, 2021, a detailed interim decision was released. With respect to interim parenting, the chambersjudge concluded that the best interests of the children were met by remaining in Vanessa’s primary care, predicated on her return toNorth Battleford or a location within 50 km of North Battleford. To provide her with an opportunity to find a suitable residence orproceed with an application for exclusive possession of the family home, he directed that she return no later than September 1, 2021.

Thefather’s parenting time was directed to fall on alternate weeks from Thursday at 4:00 p.m. until Sunday at 6:00 p.m. He was also grantedsome mid-week parenting time twice per month and electronic parenting time. [52] The mother complied with the order. By order dated September 16, 2021, the parties commenced a “nestingarrangement”, with the mother residing in the family home during her parenting time and returning to Cochrane during the father’sparenting time.

This arrangement continued for the next 10 months, although the parties agreed on some alternate times during theChristmas break. [53] The mother was unemployed from the date of separation until April 2022 when she secured employment with acompany in Cochrane that allowed her to work remotely from North Battleford. During this time, the parties predominantlycommunicated through text with limited success. [54] At a pre-trial conference in June 2022, the parties agreed to implement a week-about shared parentingarrangement.

This allowed the mother to reside in Cochrane for the summer and parent the children in Cochrane during her parentingweek. It also allowed the father to assume exclusive possession of the family home and parent the children in the home during hisparenting week. They agreed to exchange the children in Castor, Alberta, each Sunday and to share the travel for exchanges –approximately three hours each way amounting to a 6-hour drive for the children each week. [55] By all accounts, the shared parenting went well.

While the children would complain about the length of thedrive each weekend, they adjusted well to the week-on/week-off

schedule in the two communities. At the end of the summer, the partiesagreed to continue the week-on/week-off

schedule until trial. [56] At the pre-trial the parties also agreed to participate in joint counselling with a view to improvingcommunication and co-parenting strategies. Unfortunately, this never occurred. Travis retained a therapist in Saskatoon and paid theinitial consultation fee of $178. He informed Vanessa, who, after some delay, proposed an alternate therapist in Calgary who hadexpertise in family violence. The father was unwilling to consider the mother’s proposal because he had already paid a retainer to thetherapist in Saskatoon.

A standoff ensued and counselling never occurred. [57] Unfortunately, parental communication and cooperation have remained challenging and have led tomisunderstandings and missed opportunities for the children. ISSUES [58] The legal issues to be determined are as follows: 1. What parenting arrangement is in the best interests of the children having regard to their physical, emotional and psychologicalsafety, security and well-being? 2. What amount of ongoing child support is payable and to whom? 3. How should I exercise my discretion respecting costs? ANALYSIS 1.

What parenting arrangement is in the best interests of the children having regard to their physical, emotional andpsychological safety, security and well-being? a. The legal framework [59] This is an initial application to determine the best interests of Brody and Teagan within the context of themother’s relocation to Cochrane, Alberta.

The mother argues that it is in the best interests of the children to reside in her primary care inCochrane, while the father argues that their best interests are found in retaining their habitual residence in North Battleford. [60] The Court of Appeal has clarified that the determination of this issue requires a cohesive, blended analysis of thebest interest factors within the context of the proposed relocation: Friesen v Friesen, 2023 SKCA 60 [Friesen], and Chapman vSomerville, 2022 SKCA 88, [2022] 11 WWR 242 [Chapman].

In so doing, the proposed relocation and its impact on the family isconsidered as part of the determination of the best interests of the children, not as a separate issue. [61] This approach was also endorsed by the Supreme Court of Canada in Barendregt v Grebliunas, 2022 SCC 22 atpara 112 [Barendregt], where Karakatsanis J. stated: [112] The approach to mobility issues when they are raised at first instance, as in this case, differs from the approach to such issueswhen they are raised by way of a variation application, as in Gordon [ (SCC), [1996] 2 SCR 27].

Without a pre-existingjudicial determination, a parent’s desire to relocate is simply part of the factual matrix in the assessment of what parenting arrangementis in the best interests of the child. … [62] As the parties were never married, the governing principles are found in The Children’s Law Act, 2020, SS2020, c 2 [CLA]. The relevant sections of the CLA are as follows:

(1) In making, varying or rescinding a parenting order, the court shall take into consideration only the best interests of the child.

(2) A parenting order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

(3) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, including: (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent; (

d) the history of care of the child; (

e) the child’s views and preferences, by giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person with respect to whom the parenting order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person with respect to whom the parenting order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things: (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and (ii) the appropriateness of making a parenting order that would require persons with respect to whom the parenting order would apply to cooperate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. [ 63 ] Where mobility is in issue, additional considerations come into play: 15

(1) In deciding whether to authorize a relocation of a child, the court shall take the following into consideration, in addition to the factors mentioned in

section 10: (

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 pursuant to

section 13 or pursuant to family law legislation, an order, an arbitral award or an agreement; (

e) the existence of an order, an arbitral award or an 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 decision-making responsibility or parenting time, taking into consideration, among other things, the location of the new place of residence and the travel expenses; (

g) whether each person who has decision-making responsibility or parenting time or a pending application for a parenting order has complied with all obligations pursuant to family law legislation, an order, an arbitral award or an agreement, and the likelihood of future compliance.

(2) In deciding whether to authorize a relocation of the child, the court shall not consider whether the person who intends to relocate the child would relocate without the child if the child’s relocation was prohibited. [ 64 ] These enumerated factors are not exhaustive nor should they be treated as a prescribed checklist. In T.B.S. v S.J.B , 2020 SKCA 93 , 45 RFL (8th) 148 , the Court of Appeal provided the following direction with respect to the application of legislated best interest factors: [22]

Section 8 (

a) of the CLA contains a non-exhaustive list of factors that guide a trial judge in determining the best interests of a child when parenting arrangements are in dispute: B.B. v E.B ., 2020 SKQB 56 at para 18 . T.B.S. is correct that the

section is not simply a list that is to be graded on a pass-fail basis. On the other hand, it is also not the formulation of a math problem or a score-keeping system. It is not a recipe to be assessed only by examining its ingredients and not the final product: A.O. [ A.O. v T.E . , 2016 SKCA 148 , 88 RFL (7th) 34 ] at para 136. The assessment of all of the factors that influence a child’s best interests is a difficult task that is undertaken by a trial judge through considering every factor related to a child’s best interests, assigning the weight that is appropriate in

the circumstances and determining the appropriate parenting arrangements on the basis of the cumulative effect of all of the factors. It isa highly discretionary process and decision. If, as asserted by T.B.S., the trial judge simply treated each factor as an on-off switch,transforming the best interests test into a fitness test, that would constitute an error of law.

However, I do not agree that he did so. [65] Ultimately, these factors exist to assist the Court in engaging in a contextually sensitive inquiry into the needs,means, conditions and other circumstances of the child whose best interests the Court is charged with determining: Gordon v Goertz, (SCC), [1996] 2 SCR 27 [Gordon].

Children not only have the right to be free of significant harm, they have the rightto the best possible arrangement available in the circumstances: Young v Young, (SCC), [1993] 4 SCR 3 at 100. [66] Finally, while the Court is not constrained by presumptions respecting shared parenting or the status quo (seeGordon; Ackerman v Ackerman, 2014 SKCA 86, 48 RFL (7th) 1), s. 16 of the CLA imports a burden of proof in relocation cases thatserves as a starting point for the best interests analysis.

It provides as follows: 16(1) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child spendsubstantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocationwould be in the best interests of the child.

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child spends thevast majority of time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden ofproving that the relocation would not be in the best interests of the child.

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

(4) The court may decide not to apply subsections (1) and (2) if the order mentioned in those subsections is an interim order. [67] These burden of proof provisions recognize that a relocation has the potential to be a major disruption in achild’s life, depending upon the parenting structure in place and the tension that may exist between a parent’s desire to relocate and theirchild’s stability.

As such, in cases where parents exercise substantially equal parenting time, s. 16(1) suggests that the stability affordedby the status quo is in the best interest of the child and places the burden of proof on the moving parent to show that it is in the child bestinterests to relocate.

Similarly, where the child spends the vast majority of their time with one parent, s. 16(2) suggests that the child’sstability is best met remaining in that parent’s care in the new location with the burden of proof lying on the parent opposing therelocation to demonstrate that the relocation is not in the best interests of the child. The starting point is determining what the actual carearrangements are: Lemay v Lemay, 2023 ABKB 303; Malanowich v Toth, 2021 SKQB 249; J.Y.L. v T.L.L., 2021 ABQB 680; Cote vParsons, 2021 ONSC 3719.

Having reviewed same, the situation at hand does not fit squarely under s. 16(1) or (2). [68] In this case, it is questionable as to whether the burden of proof provisions apply at all, or if they do, whether itwould be appropriate to do so. First, while there is some debate in the case law as to whether a de facto parenting arrangement couldconstitute an “agreement” for the purposes of these provisions, I need not weigh into that debate in this instance. Here, there was noestablished set of parenting arrangements nor pattern of care in place that could be deemed an agreement before the relocation issuearose.

The mother relocated with the children on the day she left the relationship. The father immediately objected. Within weeks, aproceeding had been commenced putting the issue before the Court. [69] Second, the only court order governing the parties’ parenting

schedule is the August 2021 interim order thatprovides the mother with primary care of the children in Saskatchewan. By that point, both parties had filed pleadings – the fatherseeking primary care in Saskatchewan and the mother seeking primary care in Alberta.

The chambers judge was asked to make aninterim order that governed the parenting arrangement until a final determination was made. [70] Moreover, in June 2022 the de facto parenting arrangements changed dramatically when the parties agreed toshare care of the children, with the father parenting the children during alternate weeks in Saskatchewan and the mother parenting thechildren during alternate weeks in Alberta. This has continued for the past year.

As such, the “lived reality” of the children has not beenconsistent with the interim order in some time: K.D.H. v B.T.H., 2021 ABQB 548. [71] That said, neither parent intended nor expected this shared parenting agreement to be long term. Both partieswere aware that the mother was pursuing an order to have the children in her primary care in Alberta by the time that Teagan was schoolage, and that the father was opposed to same.

Trial dates were set. [72] The legislation recognizes that treating an interim order like an “order” for the purposes of s. 16 (1) and (2),may not serve this underlying purpose of the provisions and specifically affords discretion to the Court to consider whether it isappropriate to apply the burden of proof subsections.

In T.K. v C.E., 2021 SKCA 138, the Court of Appeal considered these provisionswithin the context of an interim consent order and held as follows: [29] However, s. 16(4) recognizes that the assumption that underpins the assignment of an onus under s. 16(1) and s. 16(2) may notexist when a parenting arrangement has been put in place via an interim order. One reason for this is that the foundation for interimorders is sometimes different than that for final orders. In some cases, interim orders are the product of quick court processes where theparties are not able to put forward a complete evidentiary record.

In most cases, the evidence is introduced by way of affidavits. Theevidence is often contradictory or difficult to sort out. Most often there is no cross-examination on the affidavits. Sometimes interimorders become, in effect, final in nature. Every case is, of course, unique.

However, recognizing the limitations that may – but do notalways – exist in the process leading to interim decisions or in their character, s. 16(4) grants to the court the ability to dispense with theapplication of the onus that would otherwise be engaged by s. 16(1) or s. 16(2). [30] Neither party referred this Court to any appellate-level decisions interpreting s. 16. However, s. 16 of the CLA 2020 is modelledon ss. 16.93 and 16.94 of the Divorce Act, RSC 1985, c 3 (2d Supp). These provisions were considered in J.Y.L. v T.L.L., 2021 ABQB680. In that case, Angotti J. approached the

interpretation of ss. 16.93 and 16.94 of the Divorce Act from the opposite direction – byconsidering why an onus may be shared by both parties, when either there was no order, award or agreement in place, or when the court

exercises its discretion not to apply the specific burden where the current order is an interim order. Justice Angotti then offered the following explanation as to why the Divorce Act places the onus on both parties in such circumstances: [18] The lack of a particular burden of proof makes sense in these two scenarios. Where an order, award or agreement does not exist between the parties, the best interests of the children have likely not been the subject of a thoughtful consideration by the parties together or by the Court.

The parenting arrangement in place is often arrived at as a temporary or short-term situation, pending a more in-depth consideration. Similarly, the purpose of an interim order is to establish a temporary parenting arrangement until the parties are able to come to an agreement as to the best interests of the child or the Court has a fulsome opportunity to determine the best interests of the child upon the hearing of oral evidence: Hartley v Del Poro , 2010 ABCA 182 at para 9 and 13 . [31] Paragraph 33 of the Interim Decision is properly read against the legislative scheme I have described.

The judge’s reasons for deciding not to apply the s. 16(1) onus are found in the sentence where she stated that, “[a]s Elson J.’s interim order was only intended as a stop-gap measure until the parties could proceed to a viva voce hearing, it is not appropriate to apply s. 16(1) and therefore, ‘the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child’ (s. 16(3))” (at para 33). These reasons reflect that the judge was attuned to why the onuses described in s. 16(1) and s. 16(2) exist in first instance and when it may be appropriate to set them aside.

In this regard, the Consent Order did not make any determination as to what parenting arrangements were in the child’s best interests other than for the short period between the making of that order and that to be made following the viva voce hearing. The Consent Order is expressly stated to be “on a without prejudice basis to either Party’s position and without presupposition of the determination following the viva voce hearing”. Simply put, there was no basis to presume that the parties had agreed to a long-term parenting arrangement that was in the child’s best interests.

To the contrary, the entire premise of the Consent Order was that no such agreement existed. In these circumstances, the judge appropriately concluded that there was no reason why s. 16(1) should be applied. [32] Because the judge determined not to apply s. 16(1), according to s. 16(3), “[i]n any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child” (emphasis added).

In effect, by assigning the burden to both parties, the proponent of any specific arrangement carries the onus to show that the arrangement that is proposed is in the child’s best interests. This is how the judge approached her task of making a parenting order in this case. See also Barendregt , at para 112 ; Link v Lenskyj , 2022 BCCA 341 at para 18 ; and T.L.M. v J.D.M. , 2022 SKQB 191 at para 15 . [ 73 ] In all of the circumstances and taking into account the underlying purposes of the provisions, I am not prepared to find that either party holds a burden of proof pursuant to s. 16(1) or (2).

It is appropriate that both parties hold the same burden of proof – to provide evidence to assist the Court in determining which care plan is in the children’s best interests having regard to their physical, emotional and psychological safety, security and well-being. b. Applying the admissible evidence to the relevant factors [ 74 ] Having regard to the evidence tendered at the trial, the factors that inform the determination of the children’s best interests include (

i) the children’s needs and relationships, (ii) parental capacity, (iii) past and future care arrangements, (iv) each parent’s willingness and ability to communicate and cooperate with the other and (

v) each parent’s willingness to support the child’s relationship with the other, all within the context of the relocation factors. The CLA also requires the Court to consider any evidence relating to family violence and its impact on the children’s best interests. i. The children’s needs and relationships: [ 75 ] The children are healthy and happy pre-schoolers, with no behavioural or developmental challenges. [ 76 ] Teagan is currently five years of age. She was described as a smart and happy girl. She is active and loves to swim, do crafts, read books, bake and play with LEGO.

She enjoys being independent and wants to do things herself. She can be a little stubborn but is generally very well behaved. She is friendly, outgoing and easily initiates discussions and play with other children her age. [ 77 ] Last year, Teagan participated in gymnastics in North Battleford and in dance in Cochrane. She attended playschool/pre-kindergarten in both North Battleford and Cochrane and was reported to be doing very well. She is particularly interested in math and will do math workbooks for fun. She is eligible to commence kindergarten this fall. [ 78 ] Brody is four years of age.

He was described as a well-behaved, kind and smart boy. He loves board games, word games, puzzles and LEGO. Brody is more introverted and solitary than his sister and often prefers to play on his own. He is energetic and tends to run rather than walk. He can also be a bit clumsy and has suffered a few minor injuries as a result. He loves to play outside. [ 79 ] Brody attends the same playschool classes as Teagan and is working on increasing his fine motor skills. Initially, Brody attached himself to Teagan at school but after awhile began to explore the classroom and make his own friends.

He is eligible to commence kindergarten in the fall of 2024. [ 80 ] Last year Brody participated in gymnastics in Battleford and soccer in Cochrane. He does not have as much patience as his sister and is more prone to getting frustrated or upset. [ 81 ] The children have a typical sibling relationship. They often argue but also miss each other if separated. Neither of the children have any ongoing health issues.

While Brody has a sacral dimple, the medical professionals do not expect the condition to have any impact on his health or development. [ 82 ] The children enjoy close and loving relationships with each of their parents. They also have a very close relationship with the paternal grandmother who regularly assisted the parents with care of the children. They frequently visit the family farm where they have a full set of clothes and toys.

[ 83 ] While their contact with the maternal grandparents and extended family was limited during the relationship, the children have had the opportunity to form close and meaningful relationships with each of them since June 2022 when they began to reside in the maternal grandparents’ home in Alberta on alternate weeks.

Since then, they have formed active and loving relationships with their grandparents and have enjoyed spending time with their uncle, aunts and their similarly aged cousins at extended family dinners and events. [ 84 ] In the past, there were some occasions when the children wanted to remain with the mother and became tearful at exchanges. Presently, while the children lament the long drive each weekend, they generally transition easily from one parent to the other and settle into the new routine. ii.

Each parent’s capacity to meet the children’s needs [ 85 ] Both parents are willing and able to care for the children and meet their physical and social needs. [ 86 ] Vanessa is currently 29 years of age and has her Grade 12 education. She resides in Cochrane with her parents, Chad and Roberta Gibbons. She is physically healthy. She is a social drinker and does not use any illegal drugs. [ 87 ] She sought out medical treatment for anxiety and depression in 2021 – shortly after she was ordered to return to North Battleford.

Since the shared interim parenting arrangement was put in place in June 2022, Vanessa has been surrounded by supportive family and friends in Cochrane and has had no ongoing mental health concerns. She feels very positive about her future and the future of the children in her care. [ 88 ] The children are closely attached to the mother, who employs a gentle parenting approach. She plans activities and crafts with the children and can often be seen on the floor with them playing with toys or reading books.

While the children are generally well-behaved, in the event discipline is required, she will sit and talk with the children. If either she or the children need a minute to regulate strong feelings, they will take a bit of time and then come back together to talk about the situation. The mother testified that her goal is to raise kind, good, non-judgmental people. [ 89 ] Travis is 36 years of age and is a Red Seal journeyman welder. He has no health issues. He grew up on a farm outside of Battleford and bought a house in North Battleford in 2011 which eventually became the family home.

He has his Grade 12 diploma and is a Red Seal journeyman welder. [ 90 ] He is physically healthy and says that he has no mental health concerns. Commencing in November 2022, the father began attending counselling sessions in North Battleford, although he provided no information about his therapeutic goals or whether he intends to continue. Travis says that he is a social drinker and does not use illegal drugs. [ 91 ] He is interested in cooking, baking, gardening, woodworking and cycling. These interests align well with the interests of the children who also love to cycle, bake and garden with him.

He has always been active with the children. He sets up a skating rink in the backyard each year for the children and routinely takes them to his parents’ farm to play and visit. [ 92 ] The father has a keen interest in the children’s education. He met with their teacher before they were enrolled and attends all parent-teacher interviews. He attends school festivals. [ 93 ] He testified that to discipline the children he sits down and talks to them. He has an “emotions card” at home, and they show him on the card which emotions they are feeling and talk about what they could do differently.

When they are done talking, he asks them to apologize, specifically saying what they are sorry for. The father has chores expected in his home that are age-appropriate and talks to the children each bedtime and reminds them that they can talk to him about anything. iii. The history of care [ 94 ] Both parents were involved in the care of the children when in the home, although the mother assumed the primary parenting role prior to the separation. [ 95 ] The mother had been employed as an administrative assistant for a company located near North Battleford for approximately six years at the time of separation.

She worked Monday to Friday from 8:00 a.m. to 4:30 p.m. That said, between February 2018, when Teagan was born, and the date of separation in April 2021, the mother was on maternity leave for approximately 25 months. [ 96 ] During the relationship, the father’s work primarily involved travelling with his company’s mobile welding truck to service companies working in the oil, gas and mining sectors. His work was based on contracts and often sporadic. When he was working, he could be away from home for several days at a time.

Even when he was situated near North Battleford, he worked long days taking him away from home for 12 to 14 hours at a time. Between February 2018, when Teagan was born, and the date of separation in April 2021, he was unemployed for approximately eight months. From October 2020 to the date of separation, the father was commuting 600 km each way for work in Esterhazy. [ 97 ] They agreed that it was important for the children to stay connected with the father when he was travelling for work and would

schedule times around his shifts so the children could have FaceTime visits with him. When the father was at work, it was common for the parties to exchange text messages discussing the children’s day (pick up and drop off at daycare, dinners and other information respecting the home and the children). They would also exchange photos. [ 98 ] When the father was at home, the parties would share household and childcare responsibilities, although the mother would most commonly get up with the children in the night. The father was quite involved with shopping and meal preparation when at home, even making “prepared meals” for the family that they could eat when he was away.

[ 99 ] The children continued to attend daycare on many days when the father was at home so that he could attend to his appointments or prepare to come off or go on long shifts. He also did woodworking, and it was not safe for the children to be around when he was working with power tools. [ 100 ] For the first few months after the separation in April 2021, the mother was unemployed and residing with the children and her extended family in Cochrane. During that time, the father had regular but short periods of parenting time in the presence of the mother.

That changed by court order in the summer of 2021, and by September 2021, the parties were engaged in a nesting arrangement with the children in the mother’s primary care at the family home in North Battleford. [ 101 ] That fall, the father obtained full-time employment at a company based in North Battleford at a significant reduction in compensation, working 6:30 a.m. to 3:00 p.m. Monday to Friday. [ 102 ] Commencing in June 2022, the children have spent alternate weeks with each of their parents in their parents’ home communities.

In Cochrane, the children had school on Mondays, Wednesdays and Fridays, and the mother arranged with her employer to work from home during her parenting weeks. [ 103 ] In North Battleford, the children either attended school or daycare each weekday. The father relies on the paternal grandmother to attend at his home each morning (or stay overnight if the weather is bad and the roads are problematic), so that he can leave for work at 6:00 a.m. She will then get the children up and off to school or daycare.

On non-school days, the grandmother will often take the children to the farm, and the father will pick them up at the end of his work day. [ 104 ] The parties also facilitate a FaceTime call between the children and other parent at 6:30 p.m. each day. iv. Plans for future care [ 105 ] The mother asks to have the children placed in her primary care in her hometown of Cochrane, Alberta. Her parents, two sisters, brother and his wife and their children as well as three female cousins, all of whom have similar aged children, reside in Cochrane.

She has a close relationship with each of them, and the entire extended family gets together often for dinner and family events. [ 106 ] Other than during the nesting arrangements, since April 2021 the mother and children have lived with the maternal grandparents. The mother has not been charged rent. During that time, the children have formed close and loving relationships with their grandparents and have enjoyed many extended family events. [ 107 ] The mother currently works Monday to Friday as a project administrator for a company operating in Cochrane.

Her starting wage was $30 an hour, but since then, she has received two pay increases and is currently earning $36.50 per hour. She has also taken on more responsibilities and believes that there is room to grow in the company. She testified that this stands in contrast to her job in North Battleford where she was earning $21.50 per hour and unsatisfied with her career path. [ 108 ] The mother commenced a romantic relationship with Jeffrey Fitch in the fall of 2021. He did not testify at the trial.

The mother testified that Jeff and his parents have been friends of the family for years and have attended vacations with her family at their lot in Montana. He lives in Okotoks, Alberta, where he works as an arborist. The mother introduced Jeff to the children about a month after they started dating. Since then, he and the children have grown to love one another. He also came to Disneyland with them and frequently visits their home on his days off. The mother testified that when Jeff comes over, the children run to him and jump into his arms. The mother described Jeff as soft-spoken.

He understands his role as a support person to her and not as a parent to her children. [ 109 ] Jeff and Vanessa have discussed their future together, and Jeff intends to move to Cochrane. Vanessa plans to continue to reside with her parents while she and Jeff look for a suitable home to rent or purchase in close proximity to the grandparents’ home. [ 110 ] Once she moves out of the home, the mother intends to keep her parents significantly involved in the children’s lives, including regular family dinners.

She plans to register the children in a nearby school and continue to involve them in the many activities that are available to them in the thriving community. [ 111 ] The father opposes the children’s relocation to Cochrane on the basis that it is too far away and that he does not want to be relegated to a “weekend dad”. He wants to be involved with all of the children’s activities and in their day-to-day lives. The father’s preference is to have shared parenting in North Battleford, but if that is not possible, he asks that the children be placed in his primary care.

In that event, he is prepared to provide the mother with generous parenting time and share the driving for exchanges. [ 112 ] The father says that both children were born in North Battleford and that he and the mother intended to raise them in that community. There is no debate that North Battleford has numerous schools and extracurricular opportunities for the children. There is also a local ski hill where they can ski and snowboard. [ 113 ] At the date of trial, the father continued to reside in the family home. That residence has three bedrooms upstairs, a developed basement, a fire pit and a garden.

As part of the family property settlement, the home is to be sold and the proceeds divided. The father hopes to purchase a home in Battleford that has three bedrooms on the main floor, a basement and a suitable yard. [ 114 ] The father has extended family in the area, being his parents, his brother Tyler and a cousin. The children spent a significant amount of time with his extended family before the separation, and they continue to enjoy big family dinners and holiday celebrations at the farm. In addition, the father owns a lake lot located 25 minutes away from North Battleford where he has a boat and camper.

The children have enjoyed time at this lot since they were infants. [ 115 ] The father proposes to send the children to Battleford Central School which has smaller classroom sizes for younger grades. The school offers many activities and has a school counsellor available for the students. The kindergarten

schedule is

Monday, Wednesday and Friday on Week One and Tuesday, Thursday and sometimes Friday on Week Two. His cousin’s daughter attends there, and the children are familiar with her. [ 116 ] The father is employed Monday to Friday earning $30.30 per hour. He also has medical benefits. His plan is to remain at this job long term. He currently works from 7:00 a.m. to 3:30 p.m., which allows him to pick the children up directly from school and get them to any extracurricular activities. He also has the option to adjust his hours such that he is at work from 9:00 a.m. to 5:30 p.m.

In that event, he would take the children directly to school each morning. He has also asked his cousin, who has a daughter at the same school, if she would be willing to provide afterschool care to the children, and she agreed. v.

Each parent’s willingness to support the children’s relationship with the other [ 117 ] Much of the evidence at the trial focused on parental conflict and its role in the separation, as well as its past and ongoing impact on the children. [ 118 ] The mother says that if the children are allowed to live with her in Cochrane, she is committed to ensuring that the father remains very involved in their lives and in their care. She proposed alternate care plans and invited the father to maximize his parenting time during school holidays and professional development days.

She testified she is willing to remain flexible and modify the

schedule if Travis’s work

schedule changes or he relocates. [ 119 ] The mother wants the children to have a good relationship with their father. She encourages them to talk to their dad, and anytime they ask to speak to him, she makes it happen. She assists them in making crafts, cards and gifts for him. When they are excited about something they did or saw, she suggests they tell daddy about it. [ 120 ] The father testified that he also tries to promote the relationship between the children and their mother.

He has assisted them in making cards and crafts for the mother and has never missed helping the children get her birthday gifts and Mother’s Day gifts. He has helped them pack up garden produce that they harvested to share with the mother, and he frequently sends her photos of the children during his parenting time. [ 121 ] He further testified that anytime the children ask to speak to their mom, he makes it happen.

For instance, when they found an egg from a bird that they wanted to show their mom, or when they wanted to show their mom some Christmas decorations they were making, he set up a FaceTime call with her. [ 122 ] The father also accommodated some changes to the

schedule requested by the mother so that she could take the children on a holiday and signed travel documents to accommodate same. [ 123 ] The father has also been diligent about facilitating electronic calls between the children and the mother. Initially, he sat with them to assist them with the device, but more recently, he lets the children stay in their own rooms during FaceTime calls so that they have privacy during the call.

He claims that he does not get the same respect in return and that the mother and maternal grandmother have distracted and/or interfered with his communications with the children during his FaceTime calls.

This is disputed by the mother, who says that it can be challenging to expect such young children to focus for long blocks of time, and she encourages them to talk to the father as a natural and more organic part of their day. [ 124 ] Both parties also testified at length to the importance of the support they receive from their extended family members and the huge impact those relationships have had on the children. [ 125 ] The mother has enjoyed a close and positive relationship with the paternal grandmother.

While the situation became understandably strained in the immediate aftermath of the separation, the mother maintains a positive view of the paternal grandmother and values her relationship with the children. [ 126 ] On the other hand, the father holds a longstanding and strident hostility towards the mother’s family and their influence in the children’s lives. [ 127 ] In the father’s view, the children should spend every Christmas and major holiday in North Battleford with his extended family. This was required before the separation.

The Christmas before the separation, the father went so far as to forbid the maternal grandmother from visiting the children or bringing them gifts. She arranged to drop off the gifts with the paternal uncle. [ 128 ] He acknowledges that he has not had a good relationship with the mother’s family but claims that it was in solidarity with the mother who often complained about her mother and brother, although this does not explain why his stance has continued post-separation. Subsequent to the separation, the father refused to allow the grandparents to take the children camping.

When asked about this position at the trial, he maintained his stance that he would not consent to them taking the children but, when pressed, could not identify any reason to withhold his consent and admitted the children would be safe and likely enjoy the vacation. [ 129 ] He also insisted that the maternal grandmother not be present during FaceTime calls with the children and threatened to get a restraining order against the grandmother in response to her efforts to make amends.

He agrees that he has little respect for her family members but denies that he says anything bad about her family around the children. vi. Each parent’s willingness and ability to communicate and cooperate with the other [ 130 ] Both parties agree that communication and decision-making needs to improve. [ 131 ] Initially after the separation, the father sent numerous messages demanding details about the children. The mother found this overwhelming. After concerns were raised, the father tapered back and, at his request, the mother agreed to communicate with him by text.

[ 132 ] Since then, the father has generally been responsive to communications advanced by the mother and has been proactive in efforts to consult with the mother on matters involving the children’s health, education and activities. He claims that the mother does not consistently reciprocate. [ 133 ] For instance, the father became frustrated to learn that the mother scheduled health-related appointments in Cochrane without his consent. He learned about an optometrist appointment in November 2022, and when he asked through counsel for confirmation that she would not take them, no response was provided.

In addition, in November 2022 she made a dentist appointment in Cochrane and again when asked her to confirm she would not take them, no response was provided. [ 134 ] The father also testified that arranging for activities has been a struggle. For instance, in August 2021 the father sent the mother a link to a cheer activity for Teagan in Battleford and asked for input. The mother provided no response. A month later he asked the mother if he could register Teagan for soccer in Battleford. By this time, the interim order had directed the mother return to North Battleford with the children.

Again, she did not respond, and Teagan did not participate. In October 2021, he asked if he could put the children in skating lessons on the mother’s parenting time. She did not respond, and the children did not participate. Also, in March 2022, the father requested the mother’s response to register Teagan for gymnastics. Again, she did not respond, and Teagan did not participate for that season. [ 135 ] Even when she did respond, they did not always agree on the activities that the children could participate in.

In April 2022, the father had his lawyer send a letter proposing the children participate in swimming lessons and/or ski lessons. No agreement could be reached on the days and times that worked for the parties, and the children did not participate. [ 136 ] There were also occasions when the mother enrolled the children in activities without consulting with the father.

For instance, after June 2022 when she began to parent half-time in Cochrane, the mother registered the children in dance, soccer and pre-school in Cochrane without engaging in any discussion with the father in advance. [ 137 ] The mother admits she needs to do better. She points to the troubled relationship and tension after the separation, including incidents of harassment, surveillance and bullying on the part of the father and says that consulting with the father, who she finds to be intimidating, controlling and demanding, is uncomfortable for her.

She admits that she registered the children in activities and scheduled medical appointments without first consulting with Travis because she was concerned that he would say no and wanted to avoid a confrontation. (It is not disputed that the father forbade her from taking the children to any non-urgent medical appointments in Cochrane, including getting them immunized for the flu and COVID.) She also acknowledged that she did not consistently respond to the father’s messages regarding the children participating in activities because she wanted to avoid conflict. [ 138 ] On the other hand, the mother has consistently provided the father with details about the activities that the children are in, as well as regular updates about what is going on in their lives.

She also repeatedly acknowledged that she has to “do better” and hopes that, in time, Travis will be more willing to listen to her options, which she feels are often just pushed to the side. [ 139 ] While the father denies that he has been difficult to communicate with, he also acknowledged that there are trust issues between them. He believes that co-parenting counselling would be beneficial to them once the court matter is resolved. vii. Family violence [ 140 ] The CLA requires the Court to consider whether there has been “family violence” and, if so, its impact when making a parenting order.

Family violence is defined in the CLA as follows: 2

(1) In this Act: … “family violence” means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes the other family member to fear for one’s safety or for the safety of another person, and, in the case of a child, the direct or indirect exposure to such conduct, and includes: (

a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person; (

b) sexual abuse; (

c) threats to kill or cause bodily harm to any person; (

d) harassment, including stalking; (

e) the failure to provide the necessaries of life; (

f) psychological abuse; (

g) financial abuse; (

h) threats to kill or harm an animal or to damage property; and (

i) the killing or harming of an animal or the damaging of property; … [ 141 ] I generally accept the evidence tendered by the mother on this point.

[142] I accept that early in their relationship, the father engaged in episodes of jealousy, name-calling, erratic driving,yelling and violent outbursts. I accept that some of this behaviour continued after the parties were residing together in a spousalrelationship. On one occasion, he engaged in a physical altercation with his brother in the family home in the midst of a heated argumentwith the mother.

Despite the father’s attempt to characterize this as “normal”, this is unusually hostile and dysregulated behaviour. [143] I accept that there were a couple of occasions when the parties argued in front of Teagan. On the occasion shortlybefore the separation, Teagan was crying and pushing at the father to stop.

After demanding that the mother leave the family home, thefather abruptly removed Teagan from the mother’s arms and forbade the mother from taking the children with her. [144] I find that during a family camping trip, the father yelled at the maternal grandmother so harshly that she fledfrom the campsite and could not be found. When she finally returned, she, the grandfather and their two teenage daughters immediatelypacked up and went to a nearby hotel.

The father’s description of this event – that he gently scolded her followed by a hug – is simplynot believable. [145] I also find that he forbade some members of the mother’s extended family from entering the family home. Whilehe never prohibited the mother from taking the children for a visit in Cochrane, he insisted that they spend Christmas and other importantholidays with his family in North Battleford.

As such, the mother and children never enjoyed Christmas or other such events with herextended family during the entirety of the relationship. [146] Some of the father’s behaviour immediately after the separation is also concerning for coercive control. Thefather acknowledged that he was tracking the mother’s vehicle on his phone and fabricated reasons to inquire about something related tothe vehicle in an attempt to ascertain if the mother was with the children. He hired a private investigator to conduct surveillance of themother and her extended family.

He threatened to get a restraining order against the maternal grandmother in response to her genuineinvitation to make amends for the sake of the children. [147] He also admitted to whispering to the mother on two occasions, with the children present, that she was a badperson, that she will be sorry and that bad things are coming her way.

He further admitted to making a choking motion towards themother in a hotel room with the children present. [148] At one exchange in June 2021, he utilized recording devices in the presence of the children and asked his brotherto do so, immediately after telling the mother that she was “in trouble”. As recently as November 2022, he called her in the middle of thenight, intoxicated, and told her to drop the abuse allegations or he would come at her with everything he’s got. When they met later thatday to exchange the children, he had bruised knuckles and scratches on his face.

He said he had fallen. [149] Under cross-examination, the father acknowledged that allegations advanced in his sworn affidavit filed inadvance of the interim hearing respecting concerns about the mother’s mental health and alcohol use were exaggerated. They certainlydid not form any of the evidence at the trial. [150] When questioned, the father minimized this behaviour or how it could be perceived as abusive, harassing,controlling or threatening. He said he was joking or that the mother did not take him seriously.

He testified that she has never made areport to police nor have there been any criminal charges brought against him. He denied ever physically assaulting the mother. He alsodenied ever trying to control the mother or having issues with anger management. [151] The father does not accept that the mother feels threatened or intimidated by him or that this history has had animpact in their ability to freely and respectfully communicate.

Quite the opposite – he claims to have been paralyzed by the mother’sallegations of abuse in her pleadings and affidavits, constantly worried that some innocuous comment or gesture would be misconstruedand used against him. He depicts himself as the victim, suggesting that the mother overstated concerns to bolster her legal position. viii. Relocation factors [152] The CLA also imports a number of relocation factors to consider where one of the parents is seeking to reside in adifferent location with the children.

Those factors include the reason for the relocation, the impact of the relocation on the children, thehistorical parenting arrangement and the reasonableness of the moving parent’s parenting proposal. Some of these have already beenblended in the above analysis – for instance the historical parenting arrangement. [153] With respect to the reasons for relocation, the Supreme Court in Barendregt commented: [128] Indeed, isolating the custodial parent’s reasons for the move from the broad, individualized inquiry of the child’s best interestshas frequently proven impractical.

There will often be a connection between the expected benefits of the move for the child and therelocating parent’s reasons for proposing the move in the first place. Relocation for financial reasons, for instance, will clearly carryimplications for a child’s material welfare. Considering the parent’s reasons for moving can be relevant, and even necessary, to assessthe merits of a relocation application. [129] That said, the court should avoid casting judgment on a parent’s reasons for moving. A moving parent need not prove the move isjustified.

And a lack of a compelling reason for the move, in and of itself, should not count against a parent, unless it reflects adverselyon a parent’s ability to meet the needs of the child: Ligate v. Richardson (1997), (ON CA), 34 O.R. (3d) 423 (C.A.), atp. 434. [130] Ultimately, the moving parent’s reasons for relocating must not deflect from the focus of relocation applications — they must beconsidered only to the extent they are relevant to the best interests of the child. [154] Here, the mother seeks to parent the children in her home community surrounded by support from her parents andextended family.

She says that this is particularly meaningful given the challenging and historically abusive relationship with the father.She no longer feels isolated and alone in her parenting. She also testified that she has become mentally stronger since moving to

Cochrane, no longer requiring treatment for anxiety or depression. [ 155 ] In addition, unhappy with her career path for many years, the mother seeks to remain in Cochrane where she has obtained employment at a company with a generous remuneration package (given her education and experience), the ability to work from home two days per week and room for growth.

Finally, while not the initial reason for the relocation, I expect that the mother seeks to remain in Cochrane with the children where she hopes to advance the relationship with her current romantic partner. [ 156 ] In terms of impact, there is no question that the relocation has, and will continue to have, an impact on the children, although not as much as it might if they were school-aged and already deeply involved in the North Battleford community.

In addition, because they have spent the last year residing half-time in each community and engaging in education, social activities and extracurricular activities in each, a relocation will not be as disruptive as it might otherwise be. [ 157 ] While they have had the opportunity to build relationships with their maternal extended family over the last two years, in turn, a relocation will impact the amount of time they will be able to spend with their paternal grandparents with whom they have a very close relationship.

In addition, they will be required to travel long distances on a regular basis to see the other parent – something they have found wearisome. [ 158 ] Probably the greatest impact is that the children will not have the benefit of having both parents regularly attend their school events and activities, although it is possible that had the father continued to work in the same manner as he did during the relationship, this would not have been attainable even had the parties remained in

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