ALK v KWS, 2023 ABKB 419

Court of King’s Bench of Alberta Citation: ALK v KWS, 2023 ABKB 419 Date: 20230712 Docket: 4803 185635 Registry: Edmonton Between: ALK Plaintiff/Respondent - and - KWS Defendant/Applicant Restriction on Publication Identification Ban – See the Family Law Act ,

section 100. By Court Order, no person shall publish or broadcast information that may identify the children involved in this proceeding. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision on Relocation Application of the Honourable Justice James T.

Neilson _______________________________________________________ [ 1 ] KWS, the defendant in this divorce action, makes application for an order permitting the father’s two younger children to accompany him and his family from Edmonton to Kingston/Trenton Ontario in the summer of 2023. [ 2 ] By way of background, the parties were married on April 24, 2008 and were separated on November 27, 2017. [ 3 ] There are three children of the marriage, CH age 13, C age 11 and K age 5.

[4] Interim without prejudice consent orders had been issued by the Court in January 2019 and March 2019 with respect toparenting of the children. Subsequently, the Court issued a Divorce Judgment and Corollary Relief Order dated January 25, 2020 andfiled on January 29, 2020. This judgment memorializes the parenting arrangement between the parties, who have joint custody andshared decision making powers and responsibilities with respect to the children. As K, who was born in 2017, was still quite young, theDivorce Judgment set out a graduated

schedule for increasing parenting time with the father, so that by January 1, 2020, the father shallhave a week on and a week off parenting time with K. The parties also have shared parenting for CH and C on a week on and week offrotation. [5] The father, who is employed by the Canadian Armed Forces, has been reposted by his employer to Kingston Ontario in thesummer of 2023. He and his current partner AS, have purchased an affordable and suitable house in Trenton Ontario, which isapproximately a one hour commute from Kingston. AS has three children from a former marriage.

She has also been assigned by heremployer, the Canadian Armed Forces, to relocate in Kingston. [6] The Respondent mother, who is employed in Edmonton by the Minister of Corrections, has recently relocated her residencein St. Albert, Alberta with her current partner, T. [7] The Applicant father has complied with the notice requirement to relocate as set out in the Divorce Act under s. 16.9 and16.92(1)(

d) and has given notice of a change in geographic area as required in the parties’ Separation Agreement. [8] The father made application in April 2023 for a PN7 Voice of the Child Report for the three children to determine whetherthey want to, and/or it is in their best interest to relocate with himself and his wife AS to Kingston Ontario.

That Application wasdismissed by Order dated April 26, 2023 and filed on May 4, 2023. [9] Now, the father has made a family application filed on June 8, 2023 for an Order that the oldest child, CH will have primaryresidence with her mother, and that the primary residence of the younger children, C and K will be with the father, with further directionconcerning parenting time of the parents with each child as the result of the relocation.

Given the urgency for a decision in thisapplication, the Court directed that a one-day oral hearing be scheduled for June 29, 2023, providing for oral testimony from no morethan two witnesses called by each party. The oral hearing was directed by Associate Chief Justice K.G. Nielsen, pronounced on June 3,2023. Furthermore, any supporting affidavits were ordered to be filed by June 16, 2023. The parties complied with this deadline. TheApplicant father and his wife, AS, filed affidavits in support of the application.

The mother and her supporting friend, ND, also filedaffidavits in response. [10] The oral hearing proceeded as directed on June 29, 2023 and I reserved my decision as set out in these written reasons, filed onthis date.

The Provisions of the Divorce Act Governing RelocationApplications [11] The Supreme Court of Canada in Barendregt v Grebliunas, 2022 SCC 22 reviewed the development of the law since theSupreme Court’s decision in Gordon v Goertz, (SCC), [1996] 2 SCR 27, and the amendments to the Divorce Act nowgoverning relocation applications. [12] At the time the Gordon decision was rendered, the Divorce Act and provincial family legislations did not contain anyprovisions to relocation.

In 2019, Parliament amended the Divorce Act to provide a statutory regime that governs relocation applications.Subject to some notable exceptions that are not applicable to this particular application, the Divorce Act amendments largely codified theSupreme Court’s framework in the Gordon decision.

The Divorce Act amendments came into force on March 1, 2021 and apply to thisapplication. [13] It is recognized where, as here, there is an existing parenting order, relocation will typically constitute a material change incircumstances and therefore satisfy the first stage of the Gordon framework: Gordon v Goertz at paragraph 14, and Divorce Act, s.17(5.2). [14] The central issue, therefore, is whether relocation is in the best interests of the child.

As the Supreme Court of Canada statedin Barendregt at para. 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. [15] Pursuant to s. 16.93(1) of the Divorce Act, if the parties to the proceeding substantially comply with an order, arbitral award,or agreement that provides that a child of the marriage spent substantially equal time in the care of each party, the party who intends torelocate the child has the burden of proving that the relocation would be in the best interests of the child.

As the Divorce Judgment,granted January 25, 2020, provided that the parties shall have joint custody and shared decision making powers and responsibilities withrespect to the child, and that they shall have shared parenting on a week on and week off rotation, the burden of proof is on the fatherthat the relocation would be in the best interests of the children. [16] Factors in the Divorce Act to be considered in relation to the best interests of the child are set out in s. 16(3) and s. 16.92(1) ofthe Divorce Act. Factors to be Considered in Determining the Best Interests of

the Child [ 17 ] The Divorce Act in s. 16(3) , requires the Court to consider all factors related to the circumstances of the child in determining the best interests of the child. [ 18 ] The first factor to be considered is the child’s needs, given the child’s age and stage of development, such as the child’s need for stability. [ 19 ] In this case, the oldest child, CH, would remain with her mother and it is agreed that her needs are being met in the care of her mother. [ 20 ] With respect to C, she has an ongoing requirement for therapy and speech therapy, as well as medical care, which are being met currently in Edmonton.

However, the father has made arrangements in Ontario for ongoing therapy and medical care for C, as well as for K, who will require a surgical intervention to insert tubes in his ears to aid his hearing. [ 21 ] As for schooling, CH, C and K are enrolled this fall in new schools in St. Albert if they are to remain with their mother.

The father, on the other hand, has made arrangements for C and K to be enrolled in neighbourhood schools in Trenton Ontario, beginning in September. [ 22 ] The Court is also to take into consideration the nature and strength of the child’s relationship with each spouse, each of the child’s siblings, grandparents and any other person who plays an important role in the child’s life. [ 23 ] The mother moved to Alberta from Nova Scotia, and does not have any immediate family members in Alberta. She has recently moved in to the residence of her current partner, T, who has two children.

However, the mother’s three children have not yet integrated with the partner’s family. In particular, C has been the subject of insulting comments by the partner’s daughter S, concerning her weight and body shape. The mother testified that it is T who must deal with his daughter, S, with regard to her behaviour. [ 24 ] The mother’s supporting friend, ND, testified that, in the many times she has spent with the mother, she observed that she is close and affectionate with her children.

However, she has not seen the father in the years since his separation from the mother. [ 25 ] On the other hand, the children of the marriage have been integrated into the family of the father’s wife. The younger children refer to her as “mom”. C has a particularly close relationship with the wife’s daughter E, and K has a close relationship with the wife’s son, T. Also, the wife has family members living in the Toronto area. [ 26 ] In her testimony, the mother acknowledged that the father’s wife, AS, loves her children and treats them well.

She is glad that the father picked this spouse who loves her children. [ 27 ] A further factor to consider is each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse. [ 28 ] In this regard, as the father testified, he has consistently kept the mother informed concerning anything relating to the children during his parenting time.

On the other hand, the evidence indicates that the mother has been secretive in keeping information away from the father concerning her previous partner and her current partner, including where they reside. [ 29 ] As for the history of care of each child, there were complications following K’s birth that required repeated surgeries and attendance at the Stollery hospital by the mother. More recently, the father has been proactive in ensuring that C and K are receiving required therapy and speech therapy in the case of C and therapy and medical treatment for K.

The father had been critical of the mother for ignoring prescribed treatments for the children’s genetic warts on their feet, resulting in a prolonged period to keep that condition under control. He was also critical of the mother for not seeking immediate medical attention when K sprained his ankle at a trampoline park, and for not disclosing to him the seriousness of K’s constipation and incontinence while at daycare. This problem required two attendances by K with the father at hospital and subsequent medication and monitoring.

The mother had thought that K was just holding in his poo and did not initially appreciate the seriousness of this condition. [ 30 ] The mother has made arrangements for an appointment for surgical insertion of tubes in K’s ears that will help his hearing. On the other hand, the father seeks referral to a pediatrician and an ENT specialist in Ontario, in the event that K is relocated and requires that surgery to be conducted at his new place of residence. [ 31 ] Concerning the child’s views and preferences, CH has indicated that she wishes to stay in Alberta in the care of her mother, where she also has friends.

The father honours CH’s views and does not contest her continuing in the primary care of her mother following relocation by the father. On the other hand, C has expressed the view that she would like to relocate to Ontario with her father. The mother acknowledged in her testimony that this is C’s expressed wish. [ 32 ] The youngest child, K, has also expressed the wish to relocate with his father to Ontario, where his father’s wife and family will also reside.

The mother acknowledged in her testimony that K has expressed this desire but wonders if he is old enough to make an informed decision. [ 33 ] The father testified that he has not coerced C or K into making a decision to relocate with him.

Rather, given the fact that he and his wife have been reassigned by their employer to Kingston, the children were made aware as to what the possibilities were, whether to remain in Alberta, or to relocate to Ontario, depending on the decision of the Court. [ 34 ] I have referred to the plans by the father for ongoing therapy, medical care, and placement in schools for C and K should the Court grant the application to relocate with those children.

[ 35 ] The father has demonstrated the ability and willingness to care for and meet the needs of the two children and to communicate and cooperate with the mother on matters affecting the children.

Section 16.92, Additional Factors to be Considered for Relocation [ 36 ] S. 16.92(1) provides that, 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, these additional factors. [ 37 ] As for the reasons for relocation, they are only relevant as to whether there is an effect on considering the best interests of the child. The relocation by the father to Kingston is a requirement of his employer. The continuing employment permits him to continue to pay child support. [ 38 ] As for the impact of the relocation on the child, it is acknowledged by the parties that there would be an impact not only on the parents but on the children themselves, should the Court . permit the father’s relocation with the two younger children.

If the Court does not grant the application, then the father will obviously have reduced parenting time with his children. Likewise, the mother would have reduced parenting time should the two younger children relocate to Ontario. This would be the inevitable result. [ 39 ] As for the amount of time spent with the child by each person who has parenting time, since the Divorce Judgment, each parent has had joint custody and shared parenting on a week off and week on basis as memorialized in the Divorce Judgement dated January 25, 2020.

Each parent, accordingly, has been involved with their children and their children’s activities, during their respective parenting time. Each party has complied with the parenting provisions set out in the Divorce Judgment and I find that, in the future, each parent would comply with the provisions of any order issued by the Court in respect of the relocation application. [ 40 ] Finally, I consider the reasonableness of the proposal by the father for the relocation with the two youngest children.

As I have stated, arrangements have been and will be made for any required therapy and medical treatment for each child. They have been enrolled in neighbourhood schools in Trenton beginning September 2023. The father has proposed a

schedule for the exchange of the children. This will require travel to and from Trenton. In order to reduce the financial burden on the mother, the father proposes that any s. 3 support payable by the mother to the father be set off from the expenses incurred by the mother for her share of return airfare for the children.

In accordance with the Divorce Judgment, based on the father’s guideline income of $80,000 and the mother’s guideline income at $53,000 per annum, the father pays offset child support to the mother in the amount of $577 per month commencing January 1, 2020 and continuing on the first of every month thereafter. He would continue to pay that child support to the mother should the relocation application be granted. Furthermore, in accordance with the Divorce Judgment, the mother shall pay 40% and the father shall pay 60% towards s. 7 child care expenses on an ongoing basis.

Conclusion [ 41 ] Having reviewed the factors the Court must consider in determining the best interests of the children in this relocation application, and in particular:

a) the children’s needs,

b) the nature and strength of the children’s relationship with each spouse, siblings and any other person who plays an important role in their lives;

c) each spouse’s willingness to support the development and maintenance of the children’s relationship with the other spouse;

d) the history of care of the children;

e) the children’s views and preferences; and

f) the reasonableness of the proposal for relocation by the applicant; the evidence for which I have enumerated above, I conclude that it will be in the best interests of the children that CH remain in the primary care of her mother in Alberta, and that C and K relocate with their father to Ontario as proposed.

I find that, taking all of these factors into consideration and the evidence presented by the parties in this application, the father has met the burden of proving that the relocation would be in the best interests of the children, C and K. [ 42 ] Accordingly, I make the following rulings and directions in order to implement this relocation Order: 1) CH’s primary residence to be with the mother, ALK; 2) The primary residence of C and K to be with the father, KWS; 3) The parenting time of ALK with all three children will be as follows:

a) from the children’s first weekend of summer break to the August long weekend;

b) in even years, the day the children start their Christmas break until January 1 st ; in odd years, January 1 st until the day before the

Christmas break ends;

c) in even years, the entirety of the children’s spring break. 4) Parenting time for the father, KWS, with all three children will be as follows:

a) the August long weekend until the weekend before school starts;

b) in odd years, the day the children start their Christmas break until January 1 st , and on even years, January 1 st until the day before the Christmas break ends;

c) in odd years, the entirety of the children’s spring break. 5) The costs of flights for the children to go back and forth, with a guardian if necessary depending on age, to be split 50/50 between the father and the mother; 6) Facetime to the other parent three times a week, Sunday, Tuesday and Thursday evenings and on every holiday and birthday; 7) Contact via phone, text or Facetime with the other parent whenever the child wants; 8) The father will continue to pay child support to the mother in the amount of $577 per month; the child support payable by the mother to the father is off set by the cost to the mother to pay her share of the flights to and from Alberta and Ontario in accordance with this Order; and 9) The parties will each bear their own costs of this application.

Heard on the 29 th day of June, 2023. Dated at Edmonton, Alberta this 12 th day of July, 2023. James T. Neilson J.C.K.B.A. Appearances: Ronald Billingsley Ronald S. Billingsley Professional Corporation for the Applicant, KWS Michael A. Murray SB LLP for the Respondent, ALK