Ting v Ting, 2024 ABKB 25

Court of King’s Bench of Alberta Citation: Ting v Ting, 2024 ABKB 25 Date: 20240115 Docket: 4803 188092 Registry: Edmonton Between: Madison Ting Plaintiff - and - Andrew Ting Defendant _______________________________________________________ Reasons for Decision of the Honourable Justice L.K. Harris _______________________________________________________ [ 1 ] The parties are embroiled in high-conflict family litigation. [ 2 ] They were married in 2014 and separated in 2019.

There is one child of the marriage, a son, who was born in Edmonton in 2019, and who is currently 4, almost 5 years old. [ 3 ] In December 2021, the parties appeared before me for a seven-day mobility trial. The mother (“Ms. Thomas”) is originally from South Carolina and applied to relocate there with the child. The father (“Dr. Ting”) opposed the application. After the trial concluded, I gave written reasons for my decision granting Ms.

Thomas permission to relocate to South Carolina with the child, granting her primary parenting and decision-making with respect to the child, and giving detailed directions regarding the parties’ parenting times in South Carolina and Alberta: Ting v Ting , 2022 ABQB 229 . In brief, Dr.

Ting was given 7-10 days parenting time each month, alternating between Alberta and South Carolina until the child begins full-time school (referred to herein as “Schedule 1”), and thereafter, on certain holidays and during the summer so as not to interfere with the child’s school schedule, with “unfettered parenting time in Bluffton if he chooses to travel to Bluffton to exercise same” (referred to herein as “Schedule 2”). The Order arising from my Reasons for Decision is attached hereto as

Schedule “A” (the “Mobility Order”). [ 4 ] Dr. Ting unsuccessfully appealed my decision: Ting v Ting , 2022 ABCA 324 .

[ 5 ] Ms. Thomas moved to South Carolina with the child shortly after the Mobility Order was granted. She has enrolled him in daycare, pre-school, and extracurricular activities. She has organized medical care for him. Dr. Ting has exercised his parenting time, both in South Carolina and Edmonton. However, differences quickly arose between the parties about the

interpretation of various provisions in the Mobility Order. Dr. Ting says that Ms. Thomas has erroneously interpreted the Mobility Order in such a way that denies him his parenting rights and is in breach of its terms. On the other hand, Ms. Thomas says that she is following the Mobility Order and argues that it is Dr. Ting’s

interpretation that is wrong. She says that Dr. Ting continues with his obstructive behavior making it extremely difficult to arrange his parenting time, both in South Carolina and in Edmonton. [ 6 ] Dr. Ting served Ms. Thomas with a Notice to Attend Docket Court. The Endorsement flowing from that appearance gave the parties permission to seek an appearance before me to clarify the terms of the Mobility Order. After I agreed to hear the parties for that purpose, Dr.

Ting filed an application seeking an order “confirming and clarifying” the Mobility Order, an order “enforcing the Applicant’s parenting time in accordance” with the Mobility Order, and an order finding Ms. Thomas in contempt of Court for failing to comply with the Mobility Order. [ 7 ] Ms. Thomas filed a cross application. She takes the position that this Court no longer has jurisdiction to deal with parenting issues given that she and the child have moved to South Carolina. While she agrees that I may provide clarification of the provisions within the Mobility Order, she argues that much of what Dr.

Ting is seeking is actually a variation and argues that I may not vary the Mobility Order as I do not have jurisdiction to do so. Even if I had jurisdiction, she says that Dr. Ting has not established a material change in circumstances warranting variation. Proceedings have been commenced in South Carolina in relation to the enforcement and variation of the Mobility Order there. [ 8 ] I will deal with the issue of jurisdiction first, followed by addressing the remainder of the parties’ applications to the extent I am able to do so given my decision on jurisdiction. I. Jurisdiction [ 9 ]

Section 6.3 of the Divorce Act , RSC 1985 c 3 states: Child habitually resident outside Canada 6.3

(1) If a child of the marriage is not habitually resident in Canada, a court in the province that would otherwise have jurisdiction under sections 3 to 5 to make a parenting order or contact order, or a variation order in respect of such an order, has jurisdiction to do so only in exceptional circumstances and if the child is present in the province. Exceptional circumstances

(2) In determining whether there are exceptional circumstances, the court shall consider all relevant factors, including (

a) whether there is a sufficient connection between the child and the province; (

b) the urgency of the situation; (

c) the importance of avoiding a multiplicity of proceedings and inconsistent decisions; and (

d) the importance of discouraging child abduction. [ 10 ] This

section came into force on March 1, 2021. Being a relatively new provision there is limited case authority considering its application. The parties have referred me to cases from British Columbia and Alberta which provide some guidance. Those cases focus on the

interpretation of the phrase “habitually resident” and the application of that phrase to the facts before them. [ 11 ] However, with one exception, these cases are factually distinct from this case because they deal with situations where a parent has allegedly removed a child from the jurisdiction without the consent of the other parent.

Many of these cases rely heavily upon the Supreme Court decision of Office of the Children’s Lawyer v Balev , 2018 SCC 16 . [ 12 ] Balev is a Hague Convention case in which the parents had reached an agreement for the mother to take the children from Germany to Canada for one year for educational purposes. At the end of the year, the mother refused to return the children to Germany, and the father applied for an order directing the return of the children to Germany.

The Supreme Court held that determining the “habitual residence” of a child required a “hybrid approach” (as opposed to either the “parental intention” or “child-centred” approach), taking into account all relevant links and circumstances — the child’s links to and circumstances in country A; the circumstances of the child’s move from country A to country B; and the child’s links to and circumstances in country B. Considerations include the duration, regularity, conditions and reasons for the child’s stay in a member state and the child’s nationality. No single factor dominates the analysis.

The circumstances of the parents, including their intentions however, remained important, particularly in the case of infants or young children. The Court found that such an approach was consistent with the purposes of the Hague Convention . [ 13 ] In Iron v Zagorodnyaya , 2022 ABQB 323 , also a child abduction case, Bourque J considers the phrase “habitually resident” as it appears in s 6.3 of the Divorce Act at length.

He relies upon Balev and OM v ED , 2019 ABCA 509 , which is also a case considering the phrase “habitually resident” in circumstances where it was alleged that the child in question had been abducted, and the applicant sought the return of the child to Alberta. As in Balev , both OM v ED and Iron consider factors as they existed prior to the child’s move out of the jurisdiction as part of the hybrid approached endorsed in Balev . [ 14 ] In BL v JX , 2021 BCSC 2724 , the applicant mother sought an order directing that the child be returned to Canada from China to live with her.

The child had been born in British Columbia but moved to China by both parents to live with his grandparents while the applicant was completing her studies in Canada. In determining the child’s “habitual residence”, the Court cites Chan v Chow , 2001

BCCA 276 , at paras 30 - 34 , where the Court addressed the meaning of "habitual residence" as follows: [30] The first question is the natural starting point, for if Emily was “habitually resident” in Hong Kong immediately before her removal, then the court must move on to decide whether she was “wrongfully removed” from that jurisdiction in breach of the “rights of custody” of Ms. Chan.

On the other hand, if Emily was habitually resident in Canada immediately before her removal, then it follows that the Convention has no application to this case, and the appeal must be dismissed. [31] For the purposes of the Convention , the best and most useful definition of “habitually resident” can be found in Re J. (A Minor) (Abduction: Custody Rights) , [1990] A.C. 562 at 578 (H.L.) where Lord Brandon stated: The first point is that the expression “habitually resident” as used in

Article 3 of the Convention is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case.

The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so.

During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet become habitually resident in country B.

The fourth point is that, where a child of J’s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers. [32] I accept this definition, particularly, the following points: 1) The question is a question of fact to be decided by reference to all the circumstances of the case. 2) An “habitual residence” is established by residing in a place for an appreciable period of time, with a “settled intention.” 3) A child’s “habitual residence” is tied to the habitual residence of his or her custodian(s). [ 15 ] Some caution must be used in relying upon certain BC decisions as the issue of habitual residence is often governed, at least in part, by the BC Family Law Act , which is a defined term in that Act .

Notwithstanding that, it remains helpful to see how the term is treated because the approach remains one in which all the circumstances of the case are considered. [ 16 ] None of these cases cited above are exactly on point as they do not involve circumstances where there was a court-approved relocation from the jurisdiction.

However, Iron remains important because it confirms that s 6.3 of the Divorce Act confers jurisdiction on provincial superior courts to make or vary a parenting order or contact order in respect of children of the marriage who are not habitually resident in Canada only in exceptional circumstances and only if the child is present in the province in which the application is made.

Iron also concludes that the meaning of habitual residence as established in Balev is applicable to s 6.3 of the Divorce Act : [36] The meaning of habitual residence in Canada has been explained in Balev , and it favours the “hybrid approach” to determining habitual residence. The terms “habitual residence” or “habitually resident” did not appear in the Divorce Act prior to the 2019 amendments. Instead, the legislation referred to “ordinarily resident”.

Undoubtedly, by using the expressions “habitually resident” and “habitual residence”, Parliament intended for their meaning for purposes of the Divorce Act to align with the meaning given for purposes of the Hague Convention . In other words, the meaning of habitual residence flowing from Balev and subsequent jurisprudence is equally applicable to the concept of “habitual residence” in non- Hague Convention cases. [ 17 ] The decision of AJL v JGL , 2022 BCSC 1344 is on point.

There, the parties had a son, and the mother obtained an order allowing her to relocate to Australia with the child over the objections of the father. Shortly after the mobility order was granted, the mother and child left Canada and relocated to Australia. Issues subsequently arose with respect to parenting.

The father then applied for a declaration that the BC court retained jurisdiction to make parenting orders in respect of the child. [ 18 ] The Court in AJL found assistance in Kean v Cripple , 2006 NLUFC 35 in which it was stated: [23] … [the child] was initially brought to Newfoundland with the consent of both the Florida Court and his father. In essence, and perhaps without realizing the ultimate effect such an order could have, the Court and father were allowing [the child] to take up “ habitual residence ” in Newfoundland and Labrador.

As time elapsed, and should a dispute develop between the parents, it was inevitable the spirit of the Florida Court’s order would clash with the statutory and common law on the definition of “ habitual residence ” in Canada and elsewhere, as reflected by the Hague Convention . […] [28] …As is clear, in law, residency is not a product of the length of time a child resides in a jurisdiction but, rather, of the settled intention of the family unit, the existing custody arrangement and the views of the child, where appropriate… (emphasis in original) [ 19 ] The Court in AJL found that this reasoning was consistent with its jurisdiction as prescribed by the Divorce Act . [ 20 ] There were no exceptional circumstances alleged in AJL , and so the Court continued on with a determination of whether the child was habitually resident in Canada.

To do this, the Court referred to Balev and found that despite the fact that Balev was a Hague Convention case, found there was no reason not to apply the hybrid approach to determining habitual residence: [34] While Balev dealt specifically with habitual residence under the Hague Convention, I see no reason to not apply the hybrid approach to the question of habitual residence under s 6.3 of the DA . The reasoning of the Court in Balev has similarities to the considerations applicable under the DA in that it recognizes the interests of the child while allowing the intentions of the parents to be

considered. [ 21 ] In AJL , the Court then goes on to list the factors to be considered in determining a child’s habitual residence: [36] The hybrid approach to determine a child’s habitual residence allows the court to consider all relevant factors to determine the focal point of the child’s life: Balev at paras. 42–43 . The considerations may include:

a) The child’s links to and circumstances in country A: Balev at para. 43 ;

b) The circumstances of the child’s move from country A to country B: Balev at para. 43 ;

c) The child’s links to and circumstances in country B: Balev at para. 43 . [37] In assessing the child’s links to and circumstances in country A and B, the court may consider the following factors: Balev at paras. 44–45 :

a) The child’s nationality;

b) The duration, regularity, conditions and reasons for the child’s stay in the country that the child is presently in; and

c) The circumstances and intentions of the child’s parents. [ 22 ] I agree with the analysis in AJL and Iron that there appears to be no reason why the hybrid approach in Balev should not also apply to s 6(3) of the Divorce Act or cases involving court-approved relocations when assessing a child’s habitual residence. I therefore will apply that approach in this case. [ 23 ] This is a situation where the parties litigated the issue of mobility and after considering all the factors and the best interests of the child, I permitted Ms. Thomas to relocate to South Carolina with the parties’ son.

Many of the factors which I considered, including the child’s links to South Carolina and to Alberta, the child’s nationality and the circumstances and intentions of the parents were considered in that decision, and so I will not repeat them here. [ 24 ] I also gave Ms. Thomas primary parenting and decision-making (albeit, with the requirement that she consult with Dr. Ting), and I gave directions considering the child’s schooling and health care in South Carolina.

He is currently in day care and pre school and extracurricular activities in South Carolina. [ 25 ] Although the child will continue to have ties and links to his family in Canada, there is no evidence that Ms. Thomas intends to return to Canada. She is resident in South Carolina, and is the son’s primary caregiver. [ 26 ] Even though Dr. Ting is granted specified parenting time with the parties’ son, including parenting time in Canada, this is clearly a case where the purpose of permitting the relocation to South Carolina was to permit Ms. Thomas and the child to establish habitual residence in South Carolina.

Even with the parenting time granted to Dr. Ting, one cannot say that the child spends equivalent time in both South Carolina and Canada. He is not habitually resident in both countries. [ 27 ] The habitual residence of the parties’ son is in South Carolina. Further, there are no exceptional circumstances here which would warrant continuing jurisdiction in Alberta. Although Dr.

Ting argues that there is ongoing matrimonial litigation here in Alberta, and that declining jurisdiction over parenting issues creates a duplicity of actions, the Alberta matrimonial litigation must eventually come to an end, and in any event, there is no evidence before me that there is any matrimonial litigation in South Carolina. The proceedings in South Carolina have to do with parenting.

Once jurisdiction is transferred to South Carolina, there will be no duplicate parenting proceedings. [ 28 ] Considering the wording of s 6.3 of the Divorce Act , this Court has not retained jurisdiction over parenting matters and declares that jurisdiction is transferred to South Carolina. II. Effect of Decision on Jurisdiction [ 29 ] Notwithstanding my conclusion on the issue of jurisdiction, I agree with the parties that I retain the ability to clarify my Mobility Order given some of the issues that have arisen since it was granted. This is because I am not granting a new order.

I am simply providing clarification of the prior Order’s terms to give it full force and effect, which was granted while this Court had jurisdiction over parenting. [ 30 ] However, I must be careful to ensure that I am not, in effect, granting any new parenting order, including by way of variation or enforcement of the prior Parenting Order, for several reasons, most importantly, because this Court no longer has jurisdiction to do so. I must decline to hear the parties’ requests for variation of the Mobility Order.

That must be left to the Courts in South Carolina. [ 31 ] At this point, it is important to note that some of the relief requested by Dr. Ting in his application arguably does not involve parenting. In particular, he has requested an order declaring that Ms. Thomas is in contempt of the Mobility Order. [ 32 ] Notwithstanding the fact that Dr. Ting argues that I may still hear and determine his contempt application, I decline to do so, for two reasons. First, it is inadvisable for me, as the Judge who originally granted the Mobility Order, to determine a contempt application brought in relation to that Order.

A contempt application ought to be heard by a different justice than the one who granted the original Order. Second, the contempt application is intertwined with the Parenting Order. If it is determined that Ms. Thomas is in contempt of the Mobility Order, some of the potential consequences would be to direct changes to be made to the parenting regime established in that Order, which this Court cannot now do given my decision on jurisdiction. As such, I direct that any contempt

application be brought before the Court in South Carolina who would not be fettered in terms of the relief available to be granted. III. Clarification of the Parenting Order [ 33 ] I will now proceed to provide clarification of the provisions of the Mobility Order. [ 34 ] Once an order is entered or is otherwise perfected, the court which granted the order is functus and the court may not set aside or alter the order.

Otherwise phrased, once any order of the court is entered, the court has no jurisdiction to revisit that order, even if there is a change in circumstances. [ 35 ] There are some exceptions to this general rule, one of which is codified in Rule 9.14: Further or other order after judgment or order entered 9.14 On application, the Court may, after a judgment or order has been entered, make any further or other order that is required, if (

a) doing so does not require the original judgment or order to be varied, and (

b) the further or other order is needed to provide a remedy to which a party is entitled in connection with the judgment or order. [ 36 ] Rule 9.14 is typically used to “give effect to the judge’s original intention” Yassa v Parker , 2018 ABQB 305 at para 31 and AAG v JLG , 2022 ABKB 818 at paras 20 - 23 . [ 37 ] As such, I have retained jurisdiction to clarify the Mobility Order in limited circumstances. [ 38 ] Dr. Ting attached a one-page

schedule to his Affidavit posing (by my count) 28 separate questions relating to six separate paragraphs of the Mobility Order plus one more general topic. Ms. Thomas makes (also, by my count) 13 different requests for clarification, although many of her requests overlap with those of Dr. Ting. [ 39 ] I pause, at this point, to make two observations. First, at the time of the mobility hearing, Ms. Thomas had proposed a parenting order should she be permitted to move with the child to South Carolina. Dr. Ting similarly made a parenting proposal in the event I directed that the child was to remain in Alberta. Dr.

Ting did not put forward a proposal as to parenting should the child move to South Carolina, and as such, he did not avail himself of the opportunity at trial to raise many of the questions he now raises. Notwithstanding that, I have decided to address his concerns in an effort to reduce the number of conflicts that have arisen between the parties in the hope that this will result in a better outcome for the child. [ 40 ] Second, the sheer number of questions Dr.

Ting raises and the level of detail he requests highlights what has been a major difficulty between the parties all along, which is their failure to communicate appropriately, come to agreements, considering the wording of the Mobility Order and the best interests of their child, and to consider how their ongoing disagreements have, and will continue to, significantly affect their child in a negative manner. This issue was noted by the Court of Appeal at paras 15-16 of Ting v Ting , 2022 ABCA 324 : [15] One final comment.

We urge the parties to bear in mind that ongoing inter-familial and parental conflict risks causing the child irreversible psychological damage. Children must not be put at the centre of adult acrimony and should never worry that the adults most important to them, their parents, will choose to perpetuate their personal conflict over their child’s well-being. [16] It is in the child’s best interests that the parties put their own personal and emotional issues aside and do whatever they can to learn to better collaborate in their child’s upbringing.

Therefore, it is incumbent on the parties to do everything in their power to remove the child from conflict and to adhere not only to the letter of trial judge’s judgment, but to its spirit. [ 41 ] Despite this warning, the parties have continued with their conflict, consuming significant time and emotional and financial resources. I am concerned that the parties each interpret the Mobility Order to best suit their own interests, and not those of the child. [ 42 ] I have carefully reviewed the voluminous affidavits and exhibits submitted by both parties.

I am of the view that these materials are in essence an attempt to relitigate the mobility trial. As an example, Dr. Ting states in his August 18, 2023 Affidavit that he wishes to rely upon the parenting assessment completed by Dr. Torres, which was introduced at trial, stating that Ms. Thomas “has difficulty differentiating between her own needs and wants and those of her child”. He states that he believes Ms. Thomas is “trying to inflict financial harm upon me” and that “her control over my parenting time has also led to chaos in my workplace”. He argues that Ms.

Thomas has enrolled the child in preschool which involves full days, with the intention of “severely restricting my parenting time despite there being other options which are better for” the child. He argues that Ms. Thomas misled this Court about the preschool program and whether she had employment in South Carolina. He says that she has registered the child in full-time preschool for 2023/2024, in order to decrease his parenting time, instead of consulting with him and choosing a free preschool with a flexible schedule.

He complains that he has nothing to do while the child is in preschool and would prefer not to take the child to preschool when he is in South Carolina exercising his parenting time. [ 43 ] It must be emphasized to Dr. Ting that he will not be permitted to relitigate the mobility decision. [ 44 ] One of the many disputes between the parties has arisen because of their different

interpretations of Clause 7 of the Mobility Order. As noted above, Dr. Ting disputes that the child’s enrollment in full-time preschool effective August 11, 2023, constitutes full- time school as per the Mobility Order, and says that he should still be on

Schedule 1, receiving 7-10 days of parenting time each month. [ 45 ] If the parties are subject to

Schedule 2, then Dr. Ting dispute Ms. Thomas’

interpretation of Clause 7, which states:

“When the child begins school on a full time basis, the father shall have parenting time with the child as follows: (a) 6 weeks each summer, the specifics of which shall be chosen by the father; (

b) Each spring and fall break; (

c) Each Canadian Thanksgiving weekend; (

d) Unfettered parenting time in Bluffton if he chooses to travel to Bluffton to exercise same; (

e) He shall have first choice and priority for any other extended period that the child has off from school, except for American Thanksgiving weekend.” [ 46 ] Ms. Thomas interprets this clause as meaning that if Dr. Ting chooses to exercise his parenting time during the events described in (

a) through (

c) in Bluffton then his parenting time is to be unfettered. On the other hand, Dr. Ting interprets this clause to mean that he is entitled to exercise unfettered parenting time in Bluffton, in addition to the events described in (

a) through (

c) if he chooses to travel there. [ 47 ] These are only some examples of the disputes the parties are engaging in on an ongoing basis. [ 48 ] In addition to those disputes, what I have gleaned from the materials is the following chronology immediately leading up to this application which is helpful in understanding what portions of that Order require clarification: March, 2022: Mobility Order pronounced. Ms. Thomas and the child move to Bluffton, South Carolina. April 2023 The child undergoes tonsil surgery. Dr.

Ting requests parenting time immediately after surgery in Bluffton and then time in Canada immediately following that. Ms. Thomas disagrees with the parenting time in Bluffton given the child’s need for recovery but agrees to Dr. Ting’s request for parenting time in Canada. May 2023 Dispute over Dr. Ting’s parenting time. Ms. Thomas says Dr. Ting did not provide a month’s notice as required by Clause 6(

b) of the Mobility Order. Ms. Thomas offers additional dates, but the parties did not agree on Dr. Ting’s parenting time. June 2023 Dr. Ting exercises 10 days parenting time. He says it was in Canada and he travelled to Calgary to visit family with the child. July 2023 Dr. Ting has 10 days parenting time in Florida. Ms. Thomas did not consent to the trip to Florida. Dr. Ting has concerns about the high cost of accommodation in Bluffton and wishes to

schedule his accommodation elsewhere. August 2023 Dispute over Dr. Ting’s parenting time. Ms. Thomas says Dr. Ting refused to confirm dates. Dr. Ting travels to Bluffton but no agreement reached. August 11, 2023 Child begins full-time preschool in Bluffton. Ms. Thomas says

Schedule 2 now applies. Dr. Ting disagrees that preschool constitutes “full time school”. September 2023 Parties disagree as to Dr. Ting’s parenting time. He travels to Bluffton and attempts to pick the child up from school which was denied. Ms. Thomas offers other parenting days, but no agreement reached. Fall 2023 Disputes arise over Canadian Thanksgiving and whether additional dates should be added because the child does not have a fall break at school as contemplated in the Mobility Order. The parties engage in a dispute over whether the child should accompany Dr. Ting to a conference in the US. [ 49 ] Dr.

Ting argues that Ms. Thomas has not complied with the Mobility Order by facilitating his parenting time. As a result of her actions, he argues he has received far less parenting time than what he is entitled to. Ms. Thomas argues that Dr. Ting routinely avoids confirming dates until the last minute, or at all, or requests dates which are not possible to accommodate, which puts her in a very difficult position when trying to coordinate Dr. Ting’s parenting time within the child’s and her schedule. She denies any non- compliance with the Mobility Order and says that Dr.

Ting is interpreting that Order in a way which gives him de facto primary parenting, by, for example, “stacking” his parenting time together and travelling for extended periods to Bluffton in an effort to reduce the amount of her parenting time.

This amount of time frustrates her attempts to create a predictable routine for the child and removes the child from her care for extended periods of time contrary to my decision giving her primary parenting. [ 50 ] I will address each of the parties’ requests for clarification of certain portions of the Mobility Order by turning my mind to whether it is truly a request for clarification or whether it is a request for a variation and then provide my direction. I have grouped specific individual questions together where appropriate. A. Requests of Dr. Ting Request Clarification or Variation Direction

As no specific travel clause is included, can parenting time include travelling with the child. Both. The parties are entitled to travel with the child within the state or provincial jurisdiction during their parenting time. For example, when in Canada, Dr. Ting may travel with the child to Calgary or elsewhere within Alberta. He may travel within South Carolina with the child (as long as such travel does not interfere with any other activities which the child is enrolled in, including school or extracurricular activities).

The party travelling with the child shall advise the other parent 7 days in advance of any intentions to travel and provide the itinerary which shall include mode of travel, intended destination, location of accommodation and contact information. Any travel outside of the jurisdictions of South Carolina or Alberta will need to be addressed through a variation order, or else by agreement. Provide clarification with respect to Clause 2, “the mother shall have primary decision- making power regarding major decisions but must consult with the father regarding major decisions and take his views into account”.

Clarification The mother’s consultation with the father shall include providing him with information about the decision being contemplated before the decision is finalized. However, the final decision-making power rests with the mother and shall be exercised reasonably. This includes decisions regarding any and all medical or therapeutic interventions, including choosing doctors, receiving therapy, immunizations and scheduling any appointments for such interventions. It also includes the choice of schools and daycare and extracurricular activities.

Provide clarification with respect to Clause 4, “the father shall have day to day decision making for the child when the child is in his care”. Clarification “day to day decision making” includes arranging ad hoc childcare (for example, during the evening while the father goes out, or during the day while he works). The father can engage in teaching Mandarin or school lessons, swimming or music, but such schooling or other teaching shall not supplant or replace the formal schooling or extracurricular activities chosen by the mother.

The father’s day to day decision making power shall not interfere with the child’s formal schooling or extracurricular activities and the father must ensure that the child attends all such schooling and activities while the child is in his care. Provide clarification with respect to Clause 5, “both parties shall have access to all information relating to the child…” Clarification The parent scheduling any appointment or arranging for schooling or any activity shall advise the other parent of what has been arranged.

Thereafter, the onus is on the parent wishing to receive such information to contact the holder of the information, (e.g.) school or physician, and arrange to have access. The mother, as primary decision maker, shall ensure that the holder of the information has her consent to release such information to the father. The exception to this is travel arrangements. The onus is on the travelling parent to provide the other parent with copies of all flight and other itineraries and information regarding travel arrangements in advance of the travel being undertaken.

Provide clarification with respect to Clause 7 (set out at para 45 above). Both The phrase “full time school” as used in the Mobility Order is not restricted to grade school. As the mother has enrolled the child in full time preschool, the parties are required to follow

Schedule 2 effective August 11, 2023. The intention of

Schedule 2 is to provide the father with additional opportunities to exercise parenting time since the child’s travelling is restricted by his school schedule. Therefore, he is entitled to have his parenting time in accordance with subparagraphs 7(

a) through (

c) in addition to any parenting time he may be able to arrange in Bluffton, in compliance with the directions herein. However, such additional time in Bluffton shall be consistent with the parenting time provided in

Schedule 1 – in other words, no more than 7-10 days per month for those months in which no other parenting time is granted, and must not otherwise interfere with school or other scheduled activities. If the child’s school does not have a “fall break” or if the “fall break” coincides with American Thanksgiving then the father does not have parenting time at that time. Provide clarification with respect to Clause 10, “the mother shall facilitate further and other parenting time between the father and the child in the US as is possible, upon receiving reasonable notice from the father regarding the same”.

Clarification Reasonable notice shall be no less than 30 days but otherwise depends on the child’s schedule. Ultimately, it is for the mother to decide what is possible given the particular circumstances of the case. If agreeable to the mother, the father can arrange and pay for travel himself. Whether the timing of any conference is “reasonable” depends on the circumstances, including the child’s school

schedule and other activities and the amount of parenting time the father has otherwise scheduled in any given month.

Provide clarification with respect to Clause 11, “the father shall have specified video parenting time twice per week on two days of his choice. He shall have further and other video contact as can be facilitated and agreed upon”. Clarification The parties can choose any video conferencing program they wish. The father may choose the day and time in order to accommodate his work

schedule as long as it does not interfere with the child’s school, scheduled activities or sleep. He must provide 7 days’ notice to the mother of his choice of day and time and his choice must not change without prior agreement of the mother. If the mother wishes to have an order compelling video contact during the father’s parenting time a variation application will be required. B. Requests of Ms. Thomas [ 51 ] Many of Ms. Thomas’ requests in relation to the wording of the Mobility Order are already addressed above. I will address the outstanding requests below.

Request Clarification or Variation Direction Specify that references within the Mobility Order to “parenting” or “decision- making” be changed to “sole custody”. Variation The Mobility Decision uses language consistent with the governing statutory provisions and I decline to amend it to coincide with statutory language from another jurisdiction. The parties require a parenting app for all communications. Both The Mobility Order at Clause 12 provides that the parties shall use a shared calendar to coordinate parenting time and the child’s schedule.

All communications regarding parenting shall be through the same shared program. If the parties require further restrictions or directions on other non-parenting communications a variation application is required. IV. Conclusions [ 52 ] The parties will prepare an order reflecting these Reasons for Decision and submit it to me for signature within two weeks.

If the parties cannot come to an agreement on the wording of the order, then they each may submit their version of the order to me for consideration. [ 53 ] If the parties cannot agree on costs they may make written submissions to me, no longer than three pages, within 30 days. Heard on the 21 st day of November, 2023. Dated at the City of Edmonton, Alberta this 15 th day of January, 2024.

L.K. Harris J.C.K.B.A. Appearances: Sean Schaefer Demas Schaefer Family Lawyers for the Plaintiff Crystal A. Lawrence Lawrence & Tkachuk for the Defendant