J.R. Applicant And: H.S. Respondent, 2019 NLSC 128

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR FAMILY DIVISION Citation : J.R. v. H.S. , 2019 NLSC 128 Date : July 3, 2019 Docket : 201802F0211 Between: J.R. Applicant And: H.S. Respondent Before: Justice Jane M. Fitzpatrick Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: June 4, 5, 6 and 11, 2019

Summary: The parties never married but lived together for approximately 10 years. There are two minor children of the relationship. They broke up while the mother and children lived in a small outport Newfoundland community where she had moved, temporarily, to gain tenured teaching status. The mother recently lost her teaching position in that community, but seeks to live there permanently with the children. The father applied to have the children returned to the St. John’s area. HELD: As both parents are equally capable, and the mother is now unemployed, the children will be returned to the St.

John’s area to live with the father. Alternatively, if the mother moves back to the St. John’s area where most vacant positions exist in her field, shared parenting shall be implemented.

Appearances: Lisa L. Baker On behalf of the Applicant Jane E. Crosbie On behalf of the Respondent Authorities Cited: CASES CONSIDERED: Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, 134 D.L.R. (4th) 321; Pumphrey v. Pumphrey(1997), (NL CA), 143 Nfld. & P.E.I.R. 340, 29 R.F.L. (4th) 283 (Nfld. C.A.); Whalen v. Whalen, 2005 NLCA 35;King v. Borserio, 2018 BCCA 308; T.M. v. K.M., 2019 NLSC 94. STATUTES CONSIDERED: Children’s Law Act, R.S.N.L., 1990, c. C-13; Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

REASONS FOR JUDGMENT Fitzpatrick, J.: INTRODUCTION [1] These parties are the parents of two children, a son born in 2009 and a daughter born in 2012. Both children were born in St.John’s. [2] These parties did cohabit from the fall of 2007 until January 4, 2018 or approximately 10 years. They were never married. [3] J.R. is the father and he is originally from a small community on the Great Northern Peninsula where he grew up. He is 37years old. [4] H.S. is the mother and she was born in St. John’s. She is 35 years old. She lived in St. John’s until age four and then inEdmonton, Alberta, until age 16.

Her family returned to Newfoundland and settled in Mount Pearl, which is part of the greater St. John’sarea. She finished her last two years of high school in Mount Pearl and then attended five years at Memorial University ofNewfoundland and Labrador (“MUN”) in St. John’s directly after high school. [5] The father is an electrician who received his Red Seal as a journeyman electrician in December 2012. [6] The mother is a school teacher who graduated in December 2007. The mother completed upgrading in the winter of 2010 andobtained her designation as a special education teacher.

In particular, she has a primary and elementary education degree with specialeducation classification. [7] The mother went to La Scie, Newfoundland and Labrador, for the commencement of the September 2017 school year becauseshe obtained a job there. Both parties agree that this was never intended to be a permanent move. She took a permanent teaching job inthat community to get tenured or permanent status. It was agreed that the children would move with her. Neither party has any familialconnection to La Scie. [8] The father remained at their home in Conception Bay South (“CBS”) and worked full-time in the St.

John’s area. [9] Since the fall of 2017, the mother continued to work and reside in La Scie and has primary care of the two children of therelationship. The breakup of this couple occurred on January 4, 2018. As of May 2019, the mother has no job there as her job wasmoved to Grand Falls-Windsor. Having obtained permanent status as a teacher, she can now apply for jobs in other locations. [10] The father started an Originating Application on March 15, 2018. In it he seeks to have the children returned to the St.

John’smetropolitan area. [11] The mother now wishes to remain in La Scie permanently with the two children. The father is desirous of having the childrenmove closer to the St. John’s area. He is seeking to have the children reside with him or, alternatively, should the mother move back intothe St. John’s area, to share week on/week off access with her. [12] At trial, I heard from the witnesses for the father including the father, his mother, E.M., and his cousin, C.R.

The mothertestified, as well as her mother, C.C., and her friend from La Scie, W.L.C. issues [13] What parenting arrangement is in the best interests of the children?

[ 14 ] Should the mother’s request for mobility to La Scie be granted or should the children be returned to the St. John’s area? [ 15 ] Child support would flow from whichever decision is made with respect to parenting. Counsel for the parties agree that this can be worked out between them and will file consent orders. Should this fail, leave is granted for either party to return to Court for a final determination of child support. background [ 16 ] These parties met in June 2007 when they were introduced by the father’s first cousin, C.R. The father and C.R. had grown up in in the same small community together.

They remain quite close. C.R. knew the mother as they had started education degrees together in the fall of 2006 and graduated together in December 2007. They became close friends during the period of their education degree. [ 17 ] In the early years of their relationship, the couple struggled with their careers and engaged in continuing education. The father went back to school to finish his qualifications as a journeyman electrician.

The mother upgraded to become a special education teacher to increase her chances of employment. [ 18 ] In the fall of 2008, both parties and the father’s cousin, C.R., drove together to Alberta where all three had secured work. At that time, the mother was pregnant with the oldest child, their son. The parties had moved back to Newfoundland by Christmas 2008 and the father went back to school. For a period of time they lived in Mount Pearl with the mother’s mother as well as in Corner Brook with the father’s mother. The parties also lived in St. Anthony in the winter of 2010 with family of the father.

At that time, the mother engaged in substitute teaching work while the father was unable to find work as this area was too remote. [ 19 ] The parties also lived and worked in the Northwest Territories (“NWT”) for a period of time. This idea was instilled by the father’s mother who lived and worked there full-time. While living in the NWT, the mother ran a daycare and the father managed to find full-time work as an electrician. At that time, the mother became pregnant with the second child. [ 20 ] The parties, in June or July 2012, had permanently moved home to Newfoundland.

Their daughter was born in December 2012 in St. John’s. They had bought a house in the CBS area prior to their move home. They lived there until their break-up in January 2018, a period of about five and a half years. The CBS area is part of the greater St. John’s metropolitan area. [ 21 ] Throughout their time together, the mother had run a daycare in the NWT, a daycare out of her home in CBS and she had worked as a substitute teacher. The mother also worked cleaning buildings at night with her mother, who worked as a cleaner. The father worked as an electrician and had periods of brief unemployment.

From their return to Newfoundland in 2012, the father’s layoffs from work were relatively short and he has since worked virtually full-time in the St. John’s area. [ 22 ] The mother did not want to continue to be a substitute teacher nor run a daycare out of her CBS home. She wanted to obtain a full-time tenured teaching position. It is virtually impossible to obtain this status in St. John’s and substitute teaching does not give this status. She knew it would be better for her, and the family, if she had a full-time tenured teaching position. [ 23 ] The father was supportive of the mother’s career goal.

He knew it would enhance the family’s future to have two full-time incomes. Once a teacher obtains a full-time tenured position, they can then transfer within the Province to other locations as jobs become available. They both knew that to obtain this tenure, the mother likely would have to relocate far outside of St. John’s, as a temporary move. [ 24 ] While the mother was offered positions in Labrador and McKays Newfoundland, she settled on a position in La Scie and moved there in August 2017. The parties agreed that the children would move with her.

This made sense as they would attend the school where she was teaching and daycare would not be an issue for them. The father would then be available to engage in extra work or work for a number of weeks outside the island to obtain more money for the family. Both parties agree that there was never an intention to permanently move to La Scie. The move to La Scie was purely to obtain the status of tenure as a full-time teacher.

The mother could then transfer, as a full-time permanent teacher, within the system where there were job vacancies. [ 25 ] Once the mother and children were in La Scie, the plan was that the father would travel out there every third weekend. This was to spare having the children having to travel regularly on the highway. The mother and children would drive into St. John’s on long weekends. They planned, as a family, to spend Christmas 2017 with all of the father’s family in Alberta. [ 26 ] The father maintains the plan was always to try get back to the St.

John’s area, once the mother obtained a full-time teaching position. The mother maintains that there was no agreement on where to permanently live. She does agree that they were going to try and move to a major centre. She used the examples of Grand Falls-Windsor or Clarenville, but maintains that they never agreed on settling in CBS or the St. John’s area. She told me that the father considered moving to the La Scie area. This plan is denied by the father.

He points out there is no work for him in La Scie, an isolated community of about 800 people. [ 27 ] As planned, Christmas of 2017 was spent at the father’s brother’s house in Alberta. All of the father’s family were there including his mother and stepfather, his sister, and the father’s brother and wife and all the children. Everyone noticed what seemed to be distance between the parties during this visit. Their separation culminated suddenly on January 4, 2018 in Alberta. [ 28 ] In January 2018, the parties returned to Newfoundland with the children.

The mother returned to La Scie to continue in her teaching job during the winter 2018 term. The mother agrees that in January or early February 2018, she told the father that she would try to get a job nearer to the St. John’s area as soon as possible. This changed by March 2018. [ 29 ] The mother maintains that La Scie became their home and she refused to move back to the St. John’s area.

The father believes that the mother’s sudden change of heart and desire to stay in La Scie has to do with the fact that the mother commenced a relationship with her current boyfriend, S.R., around March 2018. [ 30 ] The father commenced his Court application in March 2018 when he was having difficulty with access and feared that the

mother would not bring the children back to St. John’s. This hearing is the trial date set for this matter. [ 31 ] The mother continued in her full-time position in La Scie for the 2018-2019 teaching year. She found out in May 2019 that her full-time job no longer exists at the school in La Scie. She is, therefore, currently unemployed for the upcoming school year. She told the Court that there are a total of 10 or 11 teachers in her school in La Scie. There are also some positions in the high school next door.

She is hopeful she will get another position to remain in La Scie, although no positions are currently available. The nearest community is Baie Verte, about a 45 minute drive from La Scie. She is eligible to apply for vacant jobs in many locations, including the St. John’s area. Evidence tendered at Court reveals that the vast majority of positions available for the mother are in the St. John’s metropolitan area. [ 32 ] Since sometime in the fall of 2018, the mother and children reside with her boyfriend, S.R., in La Scie.

He works in Alberta, 10 days on and 10 days off or what is commonly referred to as a “turnaround”. When he is home, he shares custody of his daughter, M. The mother of M. also resides in La Scie. S.R. cannot leave La Scie, I am told, because he shares custody of M. and this is his hometown. S.R. never testified at trial. [ 33 ] Communication between the parties has been quite strained, especially during the 2018-2019 access year. The father has had several periods where he had tremendous difficulty obtaining access as the mother refused to communicate with him. He sometimes could only get his son on his IPad.

He often had to arrange access through his son. The mother is upset that the father put the children in the middle of access. She says that she had to cut off communication as he continued to “badger her” about returning the children to St. John’s. The father says he had no choice but to try to arrange access through their son because the mother cut off all communication with him. [ 34 ] The father alleges that the mother has acted in bad faith. She made communication and access extremely difficult. Even after interim Court orders were in place, the father says the mother attempted to thwart access.

The mother maintains all access went ahead as ordered. She says problems arose from the father’s communication style and the fact that she preferred to stick to access exactly as outlined in Court orders. [ 35 ] I will review a select number of notable incidents regarding access and related issues. In particular, the mother surreptitiously recorded a phone call with the father in April, 2018. There were access issues surrounding the daughter’s kindergarten graduation in June 2018.

In July 2018, September 2018, Thanksgiving 2018 and January 27, 2019, access periods all had issues. [ 36 ] The April 2018 recorded telephone conversation with the father was played in Court. In her testimony, she admitted to recording several telephone conversations; however, only part of the conversation from her April 2018 phone call was played in Court. [ 37 ] The purpose of playing the call was that the mother wished to highlight that the father is telling the Court that their plan was to return to the St. John’s area. Her position is that there was no plan.

On the recording the mother asks pointed questions about the fact that there was no agreement to return to St. John’s. She mentions other places, such as Grand Falls-Winsor or Clarenville, as options for them to move as a family once she received permanent status as a teacher. The entire conversation was not played, only part of it. In the excerpt that was played, the father sounded very upset while the mother is very calm. The father is animated and with great emotion repeatedly asked the mother to return the children to the St.

John’s area. [ 38 ] In June 2018, their daughter graduated from kindergarten in La Scie. The father’s mother, a resident of the NWT, got time off work and flew home for the kindergarten graduation. This graduation was just a few days before the close of school, with the children attending kindergarten and grade 3. The father claims that the agreement was that he and his mother would drive the six and half hours to La Scie for his daughter’s kindergarten graduation. Following the graduation, both children would return with them to St.

John’s for a period of access while his mother was home visiting from the NWT. [ 39 ] The mother claims that there was never such an agreement. She was aware that his mother was coming from the NWT for the kindergarten graduation. She got tickets for them to attend the graduation. The mother claims there was never an agreement that they would get to leave La Scie with the children after the graduation. When the father and his mother arrived for the kindergarten graduation, she distanced herself and did not speak to either of them. She insisted that the children remain in school for the last few days of school.

The father and his mother drove alone back to CBS. [ 40 ] Just prior to the kindergarten graduation, the father had commenced an interim application. The parties had Court on the interim application in St. John’s within that week. The mother said that she would drop the children to the father’s house when she drove to St. John’s for Court. She claims there was never an agreement that the children would leave with them and that the last few days of school were very important. The father believes she was angry about his Court application. [ 41 ] During Court in June 2018, an access

schedule was worked out for July 2018. The mother had agreed that, during a week of the father’s July access with the children in his home, she too would be in the area and would be free to babysit. In other words, the mother offered to go to the father’s house while he worked in the daytime to mind the children during his week of July 2018 access. [ 42 ] On the first day of this access, the mother arrived as planned. She asked the father, while at the house with the children, to sign over her car to her.

He refused as he did not wish to deal with the car at that time as the matter was part of the entire Court process. The mother announced that she was going to be sick tomorrow and left the house. The father had to miss work that day and go on Kijiji to obtain a babysitter. The mother did not return for the rest of the week. The father had to find alternate babysitting arrangements for the entire week. The mother, in her testimony, does not dispute this occurred. [ 43 ] In both September and October, namely Thanksgiving 2018, the father also sought additional access. Both times the mother refused.

On the 2018 weekend of Thanksgiving, the children had a day off school, or what is called a Professional Development or “PD day”. This would enable the father to avail of an additional day of access. The mother insisted that she would have her own Thanksgiving in La Scie with the children and that the father would get the children at the Court ordered time on Friday. This deprived the father of an extra day of access when the children were off school. She told me that she would prefer to exactly follow the interim Court order and she wanted her own Thanksgiving celebration with the children.

[ 44 ] On January 27, 2019, the father was working in Labrador. A similar situation occurred where the mother was coming into St. John’s on a Thursday and the children would be off school and with her. Through his son, the father arranged access on the day before the Court order, namely a Thursday supper hour drop off at the father’s house. Normally they meet in Gander on Fridays at 8:00 p.m. or 8:30 p.m. [ 45 ] On this basis, the father lost a day’s pay and flew home early as he knew he would get an extra day with his children.

The mother later refused and did not drop off the children to the father until 6:00 p.m. that Friday at his home. The mother admits that she came into St. John’s to meet her lawyer and take her dog to the veterinarian. The children were babysat at her boyfriend’s sister’s house. She preferred this rather than drop them to their father, who was home waiting for them. She said that the children also wished to attend the veterinarian appointment with her and her dog. The veterinary clinic is right next to the father’s house.

The mother’s explanation was that the father should be reasonable as he was getting the children early at 6:00 p.m. on Friday, his Court ordered day, rather than 8:00 p.m. or 8:30 p.m. at a parking lot in Gander. Again, the mother cited that she followed the Court order and even delivered the children, early, to his door. She said she is sorry that he had lost a day’s pay, but he should have cleared all access arrangements with her. [ 46 ] On May 18, 2019, the mother found out that her teaching position in La Scie had been terminated.

The mother does not dispute that it was she who contacted the father to meet and talk on May 18, 2019. She admits that she said the “stars had aligned” and that she has decided to move into St. John’s and seek a teaching position. Exhibits of text messages between her and the father about her having chosen to now leave La Scie and move to St. John’s were tendered at trial. The mother does not deny these conversations nor text messages. [ 47 ] On May 18, 2019, the mother told the father, both in person and in writing, that she was moving into the St. John’s area with the children.

She said that she was pre-approved for a mortgage and looked at a house down the street from her mother in Mount Pearl. She admitted that she knew all along that this was best for everyone. Her mother, C.C., told me at trial that she had gone with her daughter to look at a house in Mount Pearl near her home. Her mother too was excited they were finally moving closer to home. [ 48 ] The mother did not directly discuss the status of her relationship with S.R. with the father at their May 18, 2019 meeting.

From this discussion, the father was under the impression that the mother’s decision to move had something to do with trouble in the relationship. This was because the mother had mentioned that blended families do not work and how S.R.’s daughter, M., always had to come first. Just a few days later, the mother changed her mind and decided that La Scie was her home. She again wanted to stay there on a permanent basis.

The father believes this is because the mother reconciled with S.R. [ 49 ] The mother claims that the only reason that she ever proposed moving was that she was afraid that she would lose at Court and did not want to go to Court. She denied that there was any trouble in the relationship with S.R. Although she admits she has no job in La Scie, she wishes to remain there as she describes La Scie as her permanent home. She believes a job in her area will eventually become available. She says she would try again to substitute teach. She admits that there are far more jobs available to her as a teacher in the St.

John’s metropolitan area. She says that she is close to her mother who continues to live in Mount Pearl but not close to her brother who also lives there. She would like the father to move closer to La Scie so he could see the children on a more frequent basis. [ 50 ] Another notable event is that around March 2019, the mother was subject to a 30-day Safety Plan implemented by the Department of Child and Youth Services (“CYS”). Child protection social workers placed the mother under this Plan after an incident wherein she physically disciplined their son.

The Safety Plan was never introduced to Court nor did the social worker dealing with the incident testify. The Court only heard the mother’s version of events. She did present a letter, dated June 3, 2019, indicating that the CYS file was closed as of May 31, 2019. The mother says her son accused her of choking him during a discipline event. She denies that she harmed him in any way. [ 51 ] The father became aware of the incident when social workers called him, although they never really explained to him what was taking place, citing privacy concerns.

He told the Court that when he spoke to his son, the son told him that his mother hit him really hard and had broken his Playstation. The mother admits to breaking the remote for the Playstation but denies any harm to their son. During the Safety Plan, the mother could not be unsupervised with the children, so when S.R. left to work on his turnaround in Alberta, her mother, C.C., had to go to La Scie to reside in the house to comply with the Safety Plan requirements.

The mother said the Safety Plan meant she had to be mostly supervised with the children and could only drive short distances with them in the car. [ 52 ] The mother came to the attention of CYS because she brought the child to a family doctor after this incident, as suggested by her fellow teachers at her school. She thought this would clear up the matter as she wanted to avoid trouble in her custody case. Unfortunately, her son stuck to his story with the family doctor, who ended up making a referral to the CYS Child Protection Unit.

The Safety Plan was due to the fact that the child did not back down from his story about what the mother had done. This Safety Plan is ended and the child protection file is now closed. The children continue to reside, unsupervised, with the mother and her partner in La Scie. [ 53 ] It took over a year for the trial of the father’s Originating Application to be heard. The mother maintains that, in that period of time, their roots have become extremely strong in La Scie and they have developed many relationships. She denies that it is because of her boyfriend that she wishes to stay in La Scie.

She admits that while she has entertained leaving La Scie, her ties are now strong there and she does not wish to remove the children from their home. [ 54 ] The father stresses that La Scie is a community of about 800 people and that there was never an intention to permanently reside there. He says the mother only wants to stay there because of her boyfriend. It is a six and a half hour drive one way from St. John’s to La Scie. Due to the distance on the road and the stress of dealing with the mother for access, he maintains that his relationship with the children is suffering.

He says the mother continually acts in bad faith over telephone, electronic and physical access, making it as difficult as possible. He also feels there is no future for the children in a very small community. He fears what will happen to them as teenagers. He grew up in a similarly small community in outport Newfoundland. He believes boredom in small towns leads teenagers into drinking, drugs and other issues. There are few jobs as adults in these locations. You must leave for post-secondary education.

the law [55] The leading case about mobility in Canada is Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, 134 D.L.R. (4th)321. As well, since these parties were not married, the Children’s Law Act, R.S.N.L., 1990, c. C-13 (“Act”), in particular sections 31(1)and 72 are applicable in this case. [56] The case of Gordon sets out that a party seeking to vary an existing custody order by moving a child bears the burden ofproving that it is in the best interests of the child. A two-stage inquiry must be followed.

The first step is to determine whether amaterial change in circumstances has occurred since the original custody order was made. Second, if there is not a material change incircumstance, the court should conduct a fresh inquiry to determine if the variation sought is in the best interests of the child, with nopresumption in favour of the custodial parent. [57] The case of Gordon goes on to say that, once a material change in circumstances has been established, the main focus of theinquiry is what is in the child’s best interests.

Gordon, at paragraph 49, lists the following factors to be considered: 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. [58] This case can be distinguished from the Gordon decision because there is no final custody order in place which requires theestablishment of material change in circumstances before moving to the second stage of the inquiry. It is also distinguishable fromGordon because it does not involve proceedings under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). [59] At the time the mother moved, the parties were still a couple and La Scie was considered a temporary move by both parties.

The parties separated on January 4, 2018 when the mother and children were already living in La Scie. Orders that have followed haveonly been interim parenting orders post-separation. (See: Pumphrey v. Pumphrey (1997), (NL CA), 143 Nfld. &P.E.I.R 340, 29 R.F.L. (4th) 283 (Nfld. C.A.). [60] In the context of unmarried parents, the Act, section 31(1) and 72 apply. The Act states that both parents are equally entitled tocustody of their child. There is no presumption in favour of one parent or the other. The test is what is in the best interests of the childand each case must be looked at individually on its facts.

In determining the best interest of the child, section 31(2) of the Act sets outfactors for the Court to consider including: 31.

(2) In determining the best interests of a child for the purposes of an application under this

Part in respect of custody of or access toa child, a court shall consider all the needs and circumstances of the child including (

a) the love, affection and emotional ties between the child and, (

i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child's family who live with the child, and (iii) persons involved in the care and upbringing of the child; (

b) the views and preferences of the child, where the views and preferences can reasonably be ascertained; (

c) the length of time the child has lived in a stable home environment; (

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, thenecessaries of life and the special needs of the child; (

e) the ability of each parent seeking the custody or access to act as a parent; (

f) plans proposed for the care and upbringing of the child; (

g) the permanence and stability of the family unit with which it is proposed that the child will live; and (

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

(3) In assessing a person's ability to act as a parent, the court shall consider whether the person has ever acted in a violent mannertowards (

a) his or her spouse or child; (

b) his or her child's parent; or (

c) another member of the household,

otherwise a person's past conduct shall only be considered if the court thinks it is relevant to the person's ability to act as a parent. [ 61 ] Our Court of Appeal has clearly stated in Whalen v. Whalen , 2005 NLCA 35 , that Gordon factors should be considered when mobility is an issue under the Act . While the list of factors considered under each analysis are slightly different, they are not inconsistent. In Whalen , at paragraph 18 , the Court of Appeal states as follows: 18 It is clear from a review of the two sets of factors that they are somewhat different, though not inconsistent.

Where the Children's Law Act applies, the factors set out in section 31(2) must be considered. However, where a parent seeks to relocate with the children of the marriage, the factors set out in the Gordon case are also properly considered in determining the best interests of the child. There will be some overlap between the lists and some factors will be irrelevant, depending on the particular circumstances. The most thorough analysis of the best interests of the child will be achieved by a consideration of all the relevant factors. [ 62 ] Therefore, I must consider relevant factors under

section 31 of the Act and under the Gordon structure.

Pursuant to Gordon , an inquiry into the best interests of the child requires consideration of: the existing custody and access arrangement and the relationship between the children and each parent, the desirability of maximizing the contact between the children and both parents, the views of the child, the reasons for the move, but only in exceptional cases where it is relevant for the parents to meet the needs of the child, the disruption to the children of a change of custody, and the disruption to the child consequent on the removal from family, school and community he or she has come to know. analysis [ 63 ] I have decided that there shall be joint custody of the children and primary residence with the father in the St.

John’s area. Should the mother move into the St. John’s area, shared parenting, specifically week on/week off access, shall commence as soon as the mother has suitable accommodations. I say this for several reasons. Relationship of the child with her parents other family members and other length of time she has lived in a stable home environment. [ 64 ] It is obvious that the children are equally bonded to both parents. Up until their breakup in January 2018, the children lived in a home with both parents.

While the mother had lived in La Scie with the children since August 2017, this was a temporary move designed to allow the mother to obtain a permanent teaching position. This fact is undisputed. [ 65 ] Both parents currently have stable home environments. The father continues to reside in the CBS area where the children had lived prior to the temporary move to La Scie. He lives nearby their old home and the children, when visiting, still connect with their old friends there. He has suitable accommodations.

Given the age of the children and their closeness to him, he is a capable and loving parent who can fully provide for the needs of the children. [ 66 ] The mother likewise resides in a stable home with her partner, S.R., in the La Scie area. She is clearly bonded with the children and, when the children were much smaller, spent more time with the children as she sometimes ran a daycare out of her house while the father worked outside the home. She is a loving, caring parent who can clearly fully provide for the needs of her children. [ 67 ] The difficulty is that the mother has no connection to the La Scie area.

She is close to her mother who lives in Mount Pearl, which is not far from the father who lives in CBS. The children visit with her mother. While the father has few close family members living in Newfoundland, the mother’s family are in the same area as the father. This is the area where the mother partly grew up. [ 68 ] The mother currently has no job. While she has obtained permanent teaching status, her job in La Scie is now gone. She agrees that evidence tendered at Court shows numerous jobs in the St. John’s area.

In other words, the mother acknowledges that the vast majority of jobs for her would be in the St. John’s area. Without a job in La Scie, she has to return to substitute teaching in an area where there are fewer positions for that type of work. This drastically decreases her ability to provide a stable home environment. Reasons for the Mother’s Move. [ 69 ] There is no dispute that the reason for the mother’s move to La Scie was to obtain a permanent teaching position. It is also undisputed that she never intended to remain in La Scie. Both parties agree that she would eventually either move back to the St.

John’s area or to another center where they would begin life as a family. She is now unemployed and living in La Scie. The father speculates that she wishes to remain there because she is in a relationship with her boyfriend, S.R. [ 70 ] The mother’s reasons for moving are only to be considered where it is relevant to her ability to meet the needs of the children. It is clear that, without employment, she will not be able to adequately meet the needs of the children. There are limited possible substitute teaching positions in this area.

I can place no weight on her assumption that a job will turn up for her. [ 71 ] Shortly after the parties broke up in January 2018, the mother verbalized her intention to try to immediately move her position closer to the St. John’s area. In March 2018, after commencing her relationship with S.R., she changed her mind. Her relationship with S.R. is not a consideration for me. The reason for her move has no impact on her ability as a parent nor my decision. My focus is the best interests of the children. [ 72 ] On May 18, 2019, the mother met with the father and told him that she would be returning to the St.

John’s area and looking for a job there. She admitted that she said it would be best for everyone. While she never specifically discussed her relationship, she made statements such as “mixed families don’t work” and complained that her boyfriend’s daughter always had to be the center of attention. A few days later, she changed her mind and wished to remain in La Scie. In Court she referred to La Scie as their home. [ 73 ] Without a job in La Scie, the mother has little ability to meet the needs of the children. Her situation there seems precarious.

To keep the children in a community of 800 people, with no family connection and no job, cannot be justified as in the best interests of

the children. Ability and willingness of each parent to provide the child with the guidance, education and necessities of life. [ 74 ] Each parent has strong parenting capabilities. They are equally loving and have consistently proven themselves as being able to not just meet, but surpass, the needs of their children. [ 75 ] The father understands everything that is involved in being a single parent living in the CBS area. He has the ability to provide the children with more educational and extracurricular activities than are available in the La Scie area.

He also has the advantage of the mother’s mother and her brother living nearby, which means the children shall have access to extended family for guidance and assistance. [ 76 ] While the mother has listed numerous activities in the La Scie area, I have concerns about whether the mother will be able to provide for educational opportunities and other needs of the children, long term, in such an isolated location. The educational opportunities, especially as the children age, are greater in the St. John’s area. [ 77 ] I have concerns that the mother currently has no employment.

She seemed to have some recognition, in May 2019, that it would be best for everyone if she moved her employment to the St. John’s area. This would provide more educational opportunities and extracurricular activities for the children. Plans for the upbringing of the child and permanence and stability of the family unit with which it is proposed that the child will live. [ 78 ] Both the father and the mother know that they must have childcare in place, a permanent home and a stable life in order for their children to thrive.

Both parents are capable of providing these necessities to the children. [ 79 ] I have chosen that the children shall reside in the CBS area with the father. Should the mother chose not to move to St. John’s, I believe his plan in this regard is superior. The father intends to permanently reside in the CBS area where he has remained since their move home in the summer of 2012. He has almost always had permanent employment in the St. John’s area. He definitely has no plans to, for example, move to Alberta or take turnaround employment.

He works 8:00 a.m. to 4:00 p.m., Monday to Friday, and has flexibility with his employer to meet the needs of the children, such as having to leave work early on occasions. He fully understands what is required and intends to provide a permanent home in the CBS area. He has kept his current home near the children’s former home, prior to the break-up of their relationship, in order to provide stability for them. He has already looked into after-school programs. [ 80 ] The mother claims that La Scie is her home and seeks to have a permanent residence there.

Yet, on two occasions she has said that she would move to the St. John’s area. This first occurred around January or February 2018 and more recently, in May 2019. La Scie is a community of about 800 people, is isolated and is a six and a half hours drive one way from St. John’s. Neither party is connected to this community by family. There are few jobs in this area. The mother grew up between the St. John’s area and Edmonton, Alberta. It is difficult to imagine that she wishes to remain permanently in this area, unemployed, given her own admissions of almost leaving the area two times in the last 18 months.

I question the stability of her family unit given the events of May 18, 2019 and her comments to the father. The children need permanence and stability to thrive. [ 81 ] Both parents are equally capable of raising these children. At the suggestion of the father, I think it is appropriate to order that, should the mother move into the St. John’s area, there should be shared parenting. This assumes the mother has suitable housing in which the children could live. Otherwise, for permanent stability of the family unit, the appropriate place for the children is to live is with their father in the CBS area.

The views and preferences of the child, where the views and preferences can be reasonably ascertained. [ 82 ] The daughter is currently six years old and is too young to be connected to either area to give a reasonable opinion of her views. The son is currently ten years old. It is not surprising that each party has told me that the son has expressed to them that he wishes to live with that party. No independent interview of the son has taken place. I, therefore, cannot put a great deal of weight on this factor as I cannot reasonably ascertain what the son’s wishes are.

I am certain that he loves both parents and would be happy to live with either of them. Violence [ 83 ] I do not have complete information on the incident which resulted in the mother being placed on a CYS Safety Plan. Based upon what I know, I do not find violence as a factor in my decision. In her testimony, the mother said parenting can be “messy” at times. I am certain that she loves her son and he loves her. It seems that this unfortunate incident is behind everyone. CYS have closed their file. The father admits that he too, occasionally uses physical discipline. (See: K.W. v.

M.H ., 2018 NLSC 73, especially paragraph 25 ). Past Conduct [ 84 ] I am concerned with the mother’s attitude towards access during the separation. I do believe the mother made access difficult, in particular following her receipt of Court applications and prior to Court hearings. The mother seemed to be closed to the idea of additional access, preferring to follow the letter of the Order. She displayed minimal spirit of flexibility or willingness to share the children, despite the fact that they had been residing so far away with her full-time.

In other words, I do find there is a measure of bad faith on behalf of the mother with respect to the father’s access, both on the phone and in person. This is a factor in my decision. I do not believe the father would do the same thing to the mother. I do not trust that the mother would whole-heartedly share the children and be flexible and reasonable with the father about access if they remain in La Scie with her. Other Considerations [ 85 ] I also dismiss the argument by the mother that the father wants her in the St. John’s area and not the children. It is obvious from

the surreptitious recording that was played in Court that the father desperately wants the children in the St. John’s area. The mother’s purpose for playing this recording was to reinforce the point that the parties never committed to reside in the St. John’s area. What was striking about this recording was the father’s heartfelt pleas to return the children to St. John’s. There was no mention by him of wanting her to return. None of the actions of the father add up to him having an ulterior motive to have the mother return to the St. John’s area. Clearly, he wants the children returned to the St.

John’s area. [ 86 ] In a case where both parents are of equal capability, it is in the best interests of the children to reside with the parent who can best foster a relationship with the other parent and meet the needs of the child. In this case, that person is the father. Should the mother move into the St. John’s metropolitan area, this would not be an issue. Both parties would both be able to manage their time with the children. Shared parenting would be appropriate if both parties lived in the St.

John’s area. [ 87 ] I remind myself that the focus of my inquiry is not the interests of either parent but the best interests of the children. The children’s long-term best interests are served by growing up in the CBS area where there is more access to family, greater educational opportunities and extracurricular activities. It is where they are likely to end up in the long run. Given the lack of employment by the mother in the La Scie area, it is unfair for the children to remain there. A more stable parenting arrangement exists in the St.

John’s area with their father. [ 88 ] The mother claims to have now “put down roots” as the children have resided in La Scie since August 2017. This is partly due to the fact that there was a one year delay in getting to trial. Anybody spending this much time in any community would likely put down some form of roots. However, I can place no weight on this in my decision. The father commenced his Court action in March 2018. It took until June 2019 for a full hearing. [ 89 ] As these parties broke up while the children were in their joint care, I dismiss the notion that the mother is the primary caregiver.

Counsel for the mother has argued that, pursuant to Gordon , the wishes of a primary caregiver must be given weight. The decision for the mother to live in La Scie and be the primary caregiver was a temporary one made together when they were a family unit. It was not intended to be long term or permanent. It is extended beyond the one year range due to the fact that the couple broke up and there was a delay in bringing the matter to trial.

As they were both equally sharing parenting duties when they were together, I do not find that the mother is the primary caregiver. [ 90 ] All orders in this case were interim orders and there is no final order nor material change of circumstances to consider here (See: T.M. v. K.M. , 2019 NLSC 94 , in particular paragraph 83). Parenting Arrangement [ 91 ] The current Interim Order for summer access shall remain in place as I understand the parties have both made arrangements based upon it. This Interim Order will end as of Friday August 30, 2019, at 6:00 p.m. (the Labor Day weekend).

At that time, the children shall reside with the father in the St. John’s area. If the mother has already moved into the area and has suitable accommodations, this will be his first week of shared parenting. [ 92 ] There shall be joint custody of the children. The children shall primarily reside with the father but the mother shall have access every third weekend starting the third weekend after the commencement of the fall 2019 school year or on such weekends that the parties agree.

Should there be a holiday on Friday or Monday adjoining the mother’s access weekend, the mother shall have this time included in her access time with the children. [ 93 ] Unless the parties agree otherwise, exchanges shall occur in Gander. This will take place on Friday evenings unless there is a Friday holiday, then it is Thursday evening. Return exchanges shall occur either on Sunday, or if it is a holiday, on Monday. Both parties shall equally share transportation for access at all times. Times and locations of exchanges shall be agreed between the parties. [ 94 ] No matter where the access

schedule falls, the parties shall adjust it so that the Mother’s Day weekend is with the mother and that the Father’s Day weekend is with the father of every year. [ 95 ] Should the mother move into the St. John’s area, week on/week off shared parenting shall commence with a changeover time of Friday at 6:00 p.m., unless the parties otherwise agree. The parties shall equally share transportation for all access. [ 96 ] Should week on/week off access commence, the parent with whom the children do not reside is entitled to a visit every Wednesday from 4:30 p.m. to 7:30 p.m.

The parent seeking this access shall do transportation in both directions. By consent, the parties can change this to another weekday as required. [ 97 ] With respect to Christmas, should the mother remain residing in La Scie, and the children primarily reside with the father in CBS, the mother shall have the children in odd numbered years, or commencing this year. The mother’s access commences from the time the children finish school until 2:00 p.m. on December 27, at which time the children shall be returned to the father for the remainder of the Christmas season until school recommences. This holiday

schedule shall reverse itself in even numbered years so that the father shall have the same access in even numbered years. All Christmas transportation shall be equally shared. [ 98 ] With respect to Christmas, assuming both parties live in the same St. John’s area, and access is shared, they shall share every Christmas Day with exchanges at 2:00 p.m. In odd numbered years, or starting this year, the mother shall have the children from 6:00 p.m. on Christmas Eve overnight until 2:00 p.m. Christmas Day, at which time they shall go with the father. He shall them overnight Christmas Day until 6:00 p.m. Boxing Day.

The father shall also have the children 2:00 p.m. New Year’s Eve until 6:00 p.m. New Year’s Day. This arrangement shall alternate each year so the same

schedule exists for the father in even numbered years. The remainder of Christmas holidays shall be shared equally between the parties at the dates and times agreed between them. This includes from the time the children finish school until they recommence school. [ 99 ] The parties shall share Easter access equally every year commencing in 2020. Overnights Easter Saturday shall alternate each year between the parents commencing with overnight with the mother in 2020. They shall agree on the times and dates for exchanges of

the children. [ 100 ] The children shall have reasonable unlimited calls, texts, Skype, Facebook or other similar electronic communication with the other parent at all times. [ 101 ] Both parents shall have access to the children during the children’s birthdays. In particular, the parent with whom the child does not reside shall be entitled to two and a half hours of uninterrupted access with that child, to enable a meal or visit with the child, for their birthday.

Times and places for this access shall be arranged by the parties. [ 102 ] The parties shall always advise each other of all updated addresses, telephone and cell phone numbers and an updated email address. Both parties shall be entitled to attend all medical and dental appointments, extra-curricular activities and school functions regarding the children.

Both parties shall promptly advise the other party of the names, address and phone number of all care providers, including doctors, dentists or other similar medical professionals, babysitters or after school caregivers. [ 103 ] Primary communication between the parties shall be by email or text. [ 104 ] The children shall attend school in the CBS area zoned where the father lives. Currently, these schools are Topsail Elementary and Villa Nova School.

Neither party can remove the children from these schools without the prior written consent of the other party or a further Court order. [ 105 ] Each party shall bear their own costs. _________________________________ JANE M. FITZPATRICK Justice