KYLIE JUSTINA ANDERSON, ) ) ) Stacey Ennis v. Rachel Wolfe, 2022 MBKB 221

Date: 20221121 Docket: FD 16-01-14427 (Winnipeg Centre) Indexed as: Anderson v. Lobchuck Cited as: 2022 MBKB 221 COURT OF KING'S BENCH OF MANITOBA (FAMILY DIVISION) BETWEEN: KYLIE JUSTINA ANDERSON, ) ) ) Stacey Ennis and Rachel Wolfe for the petitioner, petitioner, ) ) -and- ) ) CHRISTOPHER KENNETH LOBCHUK, respondent. ) ) ) ) Sharon Maltz for the respondent, ) JUDGMENT DELIVERED : ) November 21, 2022 THOMSON J. Introduction [ 1 ] This is a proceeding under The Family Maintenance Act C.C.S.M. c. F20 (the “ FMA ”).

The issues between the parties include parenting arrangements, final decision-making authority, consent to travel, child support and, perhaps most fundamental, the petitioner’s request of the court that she be permitted to relocate with the child, from the City of Winnipeg to the Dallas-Fort Worth area, of the State of Texas, in the United States of America, over the objection of the respondent. Background [ 2 ] The parties’ relationship began in 2016, and they soon after began living together. Their only child, Liam, was born on March 30, 2018.

He was about 10 months of age when the petitioner and the respondent separated on February 3, 2019. [ 3 ] Initially, the petitioner moved with the child to her mother’s residence. Within a month, she and Liam were residing together in an apartment the petitioner had rented. The respondent remained in the former family home. [ 4 ] The petitioner reached out to the respondent within a couple of days of their separation and invited him to spend time with Liam in her mother’s home. The petitioner, sometimes with her mother too, was present when the respondent was there, several times each week.

His attendances occurred on a somewhat ad hoc basis.

[ 5 ] The petitioner described seeing a lawyer in late February. Then, in a generously worded email, she proposed to the respondent a set

schedule for his time with Liam, “to see the amount of time that you spend with Liam increase”; identified the appropriate child support payable; enquired about his wishes for the family home; and suggested mediation. For the following six months, the respondent saw Liam in the petitioner’s apartment on Wednesdays between 6:30 a.m. and 8:00 a.m., alternate Fridays from 5:00 p.m. to 7:00 p.m., and each Sunday between 4:00 p.m. and 6:00 p.m. [ 6 ] In the month of April 2019, the petitioner first attended upon a therapist at Klinic Community Health.

She testified (as did her therapist, whom she continues to see to date) that she came to realize that she had been in an abusive relationship with the respondent.

While she denied that the respondent had ever physically assaulted her (as did he), she described a history of verbally abusive and controlling behaviors on his part, aggravated by daily alcohol consumption (none of which he directly denied). [ 7 ] In July 2019, owing to the petitioner’s changed work schedule, the parties agreed to alter the Friday visits to Thursdays. (Weeks earlier she had returned to full-time work after her maternity leave.) They also started mediation on August 13, 2019. Throughout the mediation process, between August and February 2020, the parenting

schedule was changed in minor respects, and to permit the respondent to have time with the child away from the petitioner’s home. [ 8 ] The parties came to the terms of a written interim agreement through mediation on February 3, 2020, by which the respondent would see Liam at the petitioner’s Wednesday and Thursday mornings between 7:00 a.m. and 7:45 a.m., and each Saturday between 8:30 a.m. and 6:00 p.m. at the respondent’s father’s home (where he then resided, and continues to reside now).

Additionally he was to have “FaceTime” (through the electronic app) four mornings a week, at 7:45 a.m. [ 9 ] I pause in this chronology of events to note that for a period between March 22 and May 9, 2020, the respondent did not see Liam, except via FaceTime, due to the pandemic. This interruption in in-person contact occurred again later for the same reason, between November 13, 2020 and January 8, 2021. [ 10 ] The petition was served upon the respondent on September 20, 2020. That document for the first time announced the petitioner’s request to relocate with Liam.

Anticipating his possible upset, and not wishing to have the respondent continue exercising a portion of his parenting time in her residence as provided by the mediation agreement, the petitioner had her lawyer compose a letter to him.

It revised one aspect of that schedule: rather than Wednesday and Thursday mornings at her home between 7:00 a.m. and 7:45 a.m., she specified he would have parenting time in lieu on Wednesdays at his residence between 5:00 p.m. and 7:00 p.m. [ 11 ] The mediation agreement schedule, as thusly altered, remained in place until the parties consented to the terms of two interim court orders, on July 5, 2021 and August 24, 2021, through the case management process. [ 12 ] The parties both participated in a parenting assessment conducted by a registered social worker, Mark Berkowitz, effectively completed the day before the first interim order was made.

He submitted two written reports (July 4, 2021 and October 7, 2022), and testified at trial. He was qualified as an expert witness in the matter of family and parenting assessments, by consent, and opined that Liam’s best interests were served by his continuing in the primary care of the petitioner, either here or in Texas. [ 13 ] Of import, the initial court order provided “over-night time” to the respondent for the first time (one over-night in each two-week period), and the second expanded over-nights to three in each two-week period. With minor alterations, the

schedule in the second interim consent order remained in place to the date of trial. [ 14 ] I here observe that after the parties’ separation, the respondent was, and, indeed, until fairly recently continued to be, inconsistent in the utilization of his scheduled parenting time. Episodically, Liam was returned to the petitioner early or the respondent’s parenting time went unused; there were cancellations, and rescheduling requests (which the petitioner frequently accommodated). Some FaceTime calls were made outside the designated timeframes.

The respondent did not seriously dispute any of this at trial (the petitioner had kept a contemporaneous running record for much of the time, of both in-person and FaceTime contact). Instead, he emphasized (accurately) that his consistency in adhering to the parenting

schedule has lately improved. This subject will be scrutinized further, later in these reasons. [ 15 ] Child support was also addressed in the two referenced interim consent court orders. The incomes of both parties were set ($59,349 for the petitioner, and $47,974 for the respondent) and the obligation of the respondent to pay a total of $601 per month in combined basic support and for special and extraordinary expenses was specified. At trial, the respondent acknowledged he was $2,415 in arrears. [ 16 ] When they were together, both parties were employed in the hospitality industry.

The respondent moved between different restaurants, working as a chef, until a lay-off in December 2021. After a few months, he secured his current employment in a different field of work. [ 17 ] The petitioner’s employment has been unchanged for several years. Her current position is that of a senior level manager of a franchise restaurant and bar. Its owner (her employer) is the largest franchisee of that particular chain of restaurants and bars in Canada and the United States. In August 2020, the petitioner received her first offer of employment in a management position in the United States from the owner.

A second offer followed in 2021. It is the most recent offer made on September 8, 2022, which she now wishes to accept. Her plan is to move to the Dallas-Fort Worth area with Liam to take a position as a senior assistant manager, a position that offers her a higher income and better opportunities for advancement.

Positions of the Parties [ 18 ] The petitioner asks for an order of joint custody, primary care and control, final decision-making authority, and dispensation of the respondent’s consent for her travel with Liam in Canada and in the United States. [ 19 ] She has crafted a relocation plan that is extremely detailed, and most importantly contains very specific provisions for the

maintenance of meaningful contact between Liam and the respondent in the future.

In that particular regard her plan contemplates: - some expansion of the respondent’s time with Liam between now and her relocation, which move would not occur before April 1, 2023, in part to ensure he is in Winnipeg for his 5 th birthday; - Liam would travel to Winnipeg for periods of care and control with the respondent, at minimum, five times each year (coinciding with Liam’s anticipated school break time); one week in March; two weeks in each of June and July; one week in November; and seven to 10 days at Christmas; - the petitioner would cover the cost of the requisite five return flights from Texas to Winnipeg for Liam.

She or a family member would accompany the child; - the petitioner will make Liam available to the respondent for additional periods of care and control should the respondent choose to visit Liam in Texas; and, - in further recognition of the respondent incurring expenses to exercise his periods of care and control if there is a move, the petitioner will waive her entitlement to all child support payments, and reduce the quantum of arrears payable to $1,800. [ 20 ] The respondent concedes his obligation to pay child support, but opposes all other relief sought by the petitioner.

He asks for an order of equally shared parenting time. The Law [ 21 ] The paramount consideration of the court is arriving at a just and proper disposition, of both the care and control and the mobility issues between the parties, is the best interests of Liam. Section 39(2.1) of the FMA states: 39(2.1) In determining a child's best interests in an application under subsection (2) or

section 46, the court shall consider all matters relevant to the best interests of the child including, but not limited to, the following: (

a) the nature, quality and stability of the relationship between (

i) the child and each parent seeking custody or access, and (ii) the child and other significant individuals in the child's life; (

b) the child's physical, psychological, educational, social, moral and emotional needs, including the need for stability, taking into consideration the child's age and stage of development; (

c) the impact on the child of any domestic violence, including consideration of (

i) the safety of the child and other family and household members who care for the child, (ii) the child's general well-being, (iii) whether the parent who perpetrated the domestic violence is able to care for and meet the needs of the child, and (iv) the appropriateness of making an order that would require the parents to co-operate on issues affecting the child; (

d) the ability and willingness of each parent to communicate and co-operate on issues affecting the child; (

e) the willingness of each parent seeking custody to facilitate the relationship between the child and the other parent; (

f) any special needs of the child, including special needs for care, treatment or education; (

g) the proposed plan of care for the child, including the capacity of the parent seeking custody or access to provide a safe home, adequate food, clothing and medical care for the child;

(

h) the history of the care arrangements for the child; (

i) the effect on the child of any disruption of the child's sense of continuity; (

j) the views and preferences of the child, where the court considers it appropriate to ascertain them; (

k) the child's cultural, linguistic, religious and spiritual upbringing and heritage. [22] Specific to those disputes involving a request by one parent to relocate with a child as here, the Supreme Court of Canada in theseminal decision of Gordon v. Goertz, (SCC), [1996] 2 SCR 27 addressed the core principles applicable to the judicialdetermination of such mobility cases. [23] The frequently quoted statement of McLachlin J. in Gordon identifying the factors to which the Court ought to give appropriateconsideration, follows: 49 The law can be summarized as follows: 1.

The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4.

The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views areentitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of thecase. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs ofthe child;

(

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new locationmust be weighed against the continuance of full contact with the child's access parent, its extended family and its community.

Theultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [24] Though Gordon involved a variation request, courts since have applied the same type of analytical framework when determining,as in the instant case, a parenting arrangement at first instance. [25] Recently, in Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court of Canada revisited its decision in Gordon.

In thecourse of doing so, the Court first addressed the foundational matter of determining the “best interests” of children: [97] But, even with a wealth of jurisprudence as guidance, determining what is “best” for a child is never an easy task. The inquiry is“highly contextual” because of the “multitude of factors that may impinge on the child’s best interest”: Canadian Foundation forChildren, Youth and the Law, at para. 11; Gordon, at para. 20. [98] The difficulties inherent to the best interests principle are amplified in the relocation context.

Untangling family relationships mayhave profound consequences, especially when children are involved. A child’s welfare remains at the heart of the relocation inquiry, butmany traditional considerations do not readily apply in the same way. [99] In Gordon, this Court set out a framework for deciding whether relocation is in the best interests of the child. Under thisframework, a judge has the onerous task of determining a child’s best interests in the tangle of competing benefits and detriments posedby either outcome: Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230, 334 D.L.R. (4th) 49, at para. 23.

And as Abella J.A. (as she then was)once observed, “[i]t can be no more than an informed opinion made at a moment in the life of a child about what seems likely to prove tobe in that child’s best interests”: MacGyver v. Richards (1995), (ON CA), 22 O.R. (3d) 481 (C.A.), at p. 489. [26] The Court also took the opportunity to survey developments in the common law following Gordon, as well as the subsequentenactment and amendment of legislation, both federal and provincial, bearing on mobility cases: [105] For over 25 years, Gordon has been the governing authority for mobility applications.

McLachlin J. (as she then was) set out atwo-stage inquiry for determining whether to vary a parenting order under the Divorce Act and permit a custodial parent to relocate withthe child: first, the party seeking a variation must show a material change in the child’s circumstances; second, the judge must determinewhat order reflects the child’s best interests in the new circumstances.

Gordon then provided factors to be considered in relocation cases. [106] Although Gordon concerned a variation order, courts have also applied the framework when determining a parenting arrangementat first instance, with appropriate modifications: see Nunweiler v. Nunweiler, 2000 BCCA 300, 186 D.L.R. (4th) 323, at paras. 27-28; L.D.D. v. J.A.D., 2010 NBCA 69, 364 N.B.R. (2d) 200, at paras. 10, 24-25, 27 and 29; Bjornson v. Creighton (2002), (ON CA), 62 O.R. (3d) 236 (C.A.), at para. 18.

As well, courts have applied the framework in cases governed by provincialfamily law acts, even though Gordon concerned an application under the Divorce Act: Bjornson, at paras. 8 and 17; G.J. v. C.M., 2021YKSC 20, at para. 26 ; Droit de la famille — 2294, 2022 QCCA 125, at paras. 11-12 . [107] At the time Gordon was rendered, the Divorce Act and provincial family legislations did not contain any provisions pertaining torelocation. In 2019, Parliament amended the Divorce Act to provide a statutory regime that governs relocation applications.

Severalprovinces have enacted similar statutory relocation regimes in recent years: see Family Law Act, S.B.C. 2011, c. 25, ss. 65 to 71; TheChildren’s Law Act, 2020, S.S. 2020, c. 2, ss. 13 to 17; Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 39.4; Family Law Act,S.N.B. 2020, c. 23, ss. 60 to 66; Parenting and Support Act, R.S.N.S. 1989, c. 160, ss. 18E to 18H; Children’s Law Act, S.P.E.I. 2020,c. 59, ss. 46 to 52. [108] Subject to some notable exceptions, the Divorce Act and these provincial statutes largely codified this Court’s frameworkin Gordon.

As I will explain, where they depart from Gordon, the changes reflect the collective judicial experience of applying theframework for over 25 years.

[109] The Divorce Act amendments came into force on March 1, 2021, after the courts below decided this case. Therefore, the mobility application under appeal proceeded under the Gordon framework. That said, the transitional provision in s. 35.3 of the amended Divorce Act provides: 35.3 A proceeding commenced under this Act before the day on which this

section comes into force and not finally disposed of before that day shall be dealt with and disposed of in accordance with this Act as it reads as of that day. [110] This Court did not receive any submissions on the application of s. 35.3. As I will explain, however, the outcome would be the same regardless of whether this case were decided under the amended Divorce Act or the refined Gordon framework. The new relocation provisions in the Divorce Act largely mirror developments in the common law since Gordon . As a result, I leave the discussion of the transitional provision for another day.

This case, however, provides an opportunity to bring the common law framework in line with the amended Divorce Act to assist judges in dealing with future mobility cases. [ 27 ] The Court offers specifics in the refinement or modification of the so-called second stage of the Gordon framework identifying it as, “often the sole issue when determining a relocation issue” (para. 115), whether relocation is in the best interests of the child: [152] The crucial question is whether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, security and well-being.

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

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

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

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

The court should not consider how the outcome of an application would affect either party’s relocation plans — for example, whether the person who intends to move with the child would relocate without the child or not relocate. These factors are drawn from s. 16.92(1) and (2) of the Divorce Act and largely reflect the evolution of the common law for over 25 years.

[155] As I have explained, several pillars underlying the Court’s reasoning in Gordon have shifted over time, leading courts and now legislatures to refine, modify, and supplement the Gordon factors. These refinements leave us with a clear framework going forward. [ 28 ] A final admonition, provided by Professor D.A. Rollie Thompson [1] , is that: Barendegt v. Grebliunas , 2022 SCC 22 is thus not an application of the divorce amendments.

Justice Karakatsanis does not work her way through the steps mandated by the new divorce relocation sections: the definition of “relocation”, the burdens of proof, the 11 new best interests factors plus the seven added relocation factors. Barendregt is an updating and revision of the Gordon framework, where that framework still applies. [ 29 ] This is, of course, a FMA proceeding. That legislation has not been amended to mirror the recent Divorce Act amendments (as in Saskatchewan, Ontario, New Brunswick, P.E.I. and Nova Scotia).

Accordingly, and to further clarify, the FMA and the Gordon framework, as modified in Barendregt , here apply. Analysis and Decision [ 30 ] In analyzing the matter of where Liam’s best interests lie, and how they may best be served in future, particularly in the context of the relocation request made by the petitioner, I will address all of the relevant considerations set out in the FMA , and in the now modified Gordon framework. I take a holistic approach, appreciating that those enumerated factors, to which I am to give attention, are not exhaustive, and sometimes overlap.

There will be some conflation of them in my analysis. [ 31 ] The petitioner gave always cogent, credible, nuanced and articulate testimony. She established herself as an accurate historian. Her research and planning around the possible relocation to Texas was exhaustive. She was not prone to exaggerate or to embellish, and she readily conceded Liam’s love for the respondent.

She acknowledged the importance of their father-son relationship and, more importantly, I conclude her actions over time demonstrate that acknowledgement is genuine. [ 32 ] For his part, the respondent’s testimony was plain spoken - given haltingly at times and at others with haste. But I believe it was for the most part offered sincerely. His love for Liam is evident, as is his upset at the current circumstances and the prospect of Liam’s move to Texas. [ 33 ] The facts are that the petitioner is, and has been since Liam’s birth, the primary care parent.

Since August 2021, 11 out of 14 nights he is with the petitioner. Before July 2021, from the date of separation in February 2019, the respondent had no overnights.

This historical apportionment of parenting time is a very significant, if not commanding, aspect of this case. [ 34 ] As important to me is the parenting dynamic that played out between the parties from the start, which has had as prominent features the petitioner’s initiative, organization, consistency and sensitivity to, and focus upon, the child’s needs and development. [ 35 ] Whereas the petitioner has been proactive, the respondent acknowledged he tended towards a more “laid back” approach to parenting. He is clearly not a detail person, and admitted as much.

He was inclined to defer to the petitioner, even when it came to the arrangement of his time with Liam after separation. All of the important schedules, and alterations subsequent, were drawn by the petitioner, and almost without exception acquiesced in, or explicitly agreed to, by the respondent. This in no way reflects an authoritarian temperament or streak on the part of the petitioner.

The reality seems to have been that if anything was to get done, it was for her to do it. [ 36 ] The petitioner has scheduled and attended every single one of the child’s medical and dental appointments in the past 4.5 years without the respondent’s involvement (save for one appointment he attended with her, when Liam was aged two weeks). She has made the arrangements for Liam’s attendance at daycare, and for his participation in extra-curricular activities. [ 37 ] She always advised the respondent in advance of medical and dental appointments.

The same day she located the daycare placement she communicated contact information to him. That the respondent has not participated in any significant fashion was his prerogative. It was not the responsibility of the petitioner to facilitate his involvement, or her duty to invite him on each occasion (though there is evidence she did more than once). As the petitioner testified, “I do it – nobody has to ask me – I didn’t ask him to do what parents do.” [ 38 ] The respondent, though he had earlier underlined his intention to do so, has yet to establish a household separate from his father.

His plans in that regard seem aspirational at best. I note this fact, not because it is essential to Liam’s best interests, but because it is a reflection of the respondent’s general tendency towards inertia, and improvisation, including when it comes to his relationship with Liam. [ 39 ] The petitioner has consistently assumed the lead to facilitate the respondent’s on-going contact with Liam, beginning within days of their separation. She has taken neither an obstructionist posture nor a despotic tone, as insinuated by the respondent.

Rather, she has done as much as could reasonably be expected of someone in her situation to recognize and advance the child’s best interests in having a meaningful relationship with his father. [ 40 ] Part of what makes the petitioner’s actions impressive are the negative aspects of the relationship she had with the respondent before separation. She might well have chosen to sever her connection with him, in light of the verbal abuse and alcohol use by the respondent, and abandon him to his own devices respecting the preservation of a father-son relationship. She did not.

Even when he was inconsistent in his adherence to the parenting schedules, post-separation, she suppressed any personal animosities with the respondent to favour Liam’s best interests.

[ 41 ] Liam is also a fortunate child in that he has extended family on both sides who are supportive and loving. He has spent proportionately less time with the respondent’s extended family, than that of the petitioner. But Liam benefits from all of them in the different spheres of his life. [ 42 ] Reflective perhaps of the history of parenting by the petitioner, the maternal grandmother in particular has played, and continues to play, a prominent role in his upbringing. I found her testimony impressive. She is a committed grandparent, and a valuable resource and support for the petitioner.

She is an important feature of her relocation plan. [ 43 ] There are benefits and drawbacks to a move far away from Winnipeg for Liam. [ 44 ] He has the potential to benefit from the relocation, as it will enhance the petitioner’s financial circumstances, and her ability to provide for him. This improvement in the petitioner’s economic circumstances is not just wishful thinking on her part.

The regional manager/operating partner for Manitoba and Alberta testified about the corporate expansion plans into the United States, and about her remuneration and her enhanced opportunities for advancement with the company in Texas. [ 45 ] The educational opportunities available to Liam in Texas were emphasized by the petitioner, a subject that she evidently spent many hours researching. That evidence is not a major factor in the court’s adjudication.

Given the child’s current age, and my uncertainty concerning the distinguishing features of schools in Winnipeg as opposed to Texas, the assessment becomes speculative. [ 46 ] As regards drawbacks of a move for Liam, the most obvious is some overall reduction in regular contact with the respondent. Even with ample travel and a generously crafted schedule, the intervals between in-person contacts will be longer, though the segments of time for Liam with the respondent will each be greater than under the current schedule.

If there is less time with the respondent’s family, my sense is that it will not be substantially less. [ 47 ] Balancing all of the considerations and factors pertinent to the best interests of Liam, the court concludes that the petitioner’s role as the primary parent must continue, and that in all of the relevant circumstances, the petitioner’s request for relocation ought to be granted.

This is, however, premised upon pronouncement of a final order that ensures on-going and liberal contact between the respondent and Liam. [ 48 ] The disposition of the issue of final decision-making authority, and the petitioner’s request that she be able to travel in Canada and the United States without the respondent’s consent must reflect the reality of the last 4.5 years of their parenting, and the court’s granting of the relocation request. Those forms of relief are granted to the petitioner.

Final Order [ 49 ] With respect to the precise form and contents of the final order now pronounced regarding the respondent’s parenting time, I observe that I am not sufficiently equipped to anticipate every possible complication or conflict in the parties’ lives in the future. Narrowly drawn terms designed to pre-empt every dispute over

interpretation of the order and/or moderate exercises of parental discretion must give way to the recognition of the realities of parenting where unexpected matters arise (shifting work and holiday schedules, illnesses, family emergencies, and the like). Reasonable accommodations may need to be made by the adults involved, in the best interests of the child. [ 50 ] Still, a blueprint of requisite rigidity is needed, always subject to the parties freely coming to alternative agreements, as the circumstances necessitate, in Liam’s best interests. The final order shall provide:

a) Liam will be remain in the primary care of the petitioner, who is permitted to relocate with Liam to the State of Texas, on or after April 1, 2023;

b) the respondent’s current time with Liam under the terms of the second interim order, shall continue and be expanded until Liam’s move to Texas, by one overnight in “Week 2”, Saturday from 9:00 a.m. until Sunday at 6:00 p.m. ;

c) upon relocation of Liam with the petitioner to the State of Texas, the respondent will have periods of parenting time with Liam, annually, beginning in June 2023: • for one week in March; for two weeks in each of June and July; for one week in November; and for 10 days at Christmas (such specific times and dates to be confirmed by the parties, in writing, at least three months in advance of each period); • the petitioner will be responsible to pay for the airfare for five return flights from Texas to Winnipeg for Liam, and will have an adult travel with the child also at her expense; • the petitioner will make Liam available to the respondent for two additional one-week blocks of time each year in Texas, in the event the respondent travels to Texas (such specific times and dates to be confirmed by the parties, in writing, at least three months in advance of each period). [ 51 ] On the first day of the month following the petitioner’s relocation to Texas with Liam, the respondent’s obligation to pay child support is terminated in recognition of the additional expenses he will incur to exercise his parenting time. [ 52 ] The arrears of child support due from the respondent are reduced to a total of $1,800, and are payable by him to the petitioner, forthwith. [ 53 ] As noted above, the petitioner’s requests for final decision-making authority, subject to consultation with the respondent, and travel in Canada and the United States with Liam without his consent, are also granted.

Costs

[ 54 ] The issue of costs, may be addressed at an appearance before me, arranged through the Trial Coordinators Office, if necessary. Any issues, which may exist pertaining to the form of the draft final order, may also be resolved at that same appearance. J.