Court File and Parties

COURT FILE NO.: FC727/18-01

DATE: 2023/07/24

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Ashley Irene Chief, Applicant

AND:

Bradley Thomas Ackersviller, Respondent

BEFORE: TOBIN J.

COUNSEL: Stephanie Ouellette for the Applicant

Jessica L. Bonnema for the Respondent

HEARD: July 7, 2023, by videoconference

ENDORSEMENT

The Motions

[1] There are two motions before the court.

[2] The applicant asks for a temporary order, within her motion to change, allowing her to relocate the residence of the parties’ child to Calgary from London.

[3] The respondent asks for an order that the child not be moved and that the parties share parenting time on a 2-2-3 basis.

[4] Relocation cases are difficult cases.

[5] In Reeves v. Brand, 2018 ONCA 263, para. 17, Laskin J.A. wrote:

Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent's legitimate interest in relocating with the non-custodial parent's legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.

[6] With recent amendments to the Children's Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), a more detailed procedural and substantive structure has been established to govern relocation cases. Even with these amendments, the challenges recognized in Reeves remain.

The Parties

[7] The applicant (“the mother”) is the mother of the child Addison Irene Chief, born February 5, 2014, (“the child”).

[8] The respondent (“the father”) is not the child's biological father. However, he has demonstrated a settled intention to treat the child as a child of his family: see Children’s Law Reform Act, R.S.O. 1990, c. C.12, (“CLRA”), s. 62(3)(b). This has been the case since the child was born.

[9] The parties separated in 2016 and court proceedings were then brought by the applicant.

[10] By final order dated October 25, 2018, Hebner J. granted an order which gave effect to minutes of settlement filed by the parties (“the Hebner J. order”). This order provided, in part, that the mother have “sole custody” of the child (now called decision-making responsibility). It also provided that the father have access including on alternate weekends and during holidays (now called contact).

[11] The Hebner J. order also provided that pursuant to s. 62(3) of the CLRA, service of the application in that case upon the biological father of the child was dispensed with.[^1] He was not made a party to the applicant’s motion to change that is now before the court.

Positions of The Parties

[12] The mother asks that she be allowed to move with the child to Calgary because as primary caregiver:

(1) She has a support system there and does not have one in London.

(2) The extended maternal family lives in the Calgary area.

(3) The child has expressed her views and preferences as being in support of the move.

(4) She has found employment in Calgary as an articling student. Developing her legal career in Calgary will offer her a higher income and fewer expenses than she would have in London.

(5) She has proposed a plan that would maintain the child’s relationship with the father.

[13] The father’s position is that:

(1) The mother’s plan would adversely affect his relationship with the child. The mother minimizes the strength and importance of the child’s relationship with him.

(2) There is no need for the mother to pursue her legal career in Calgary. She can and should do so in London.

(3) The mother’s support system in Calgary is not as strong as suggested by her.

(4) A move to Calgary will significantly disrupt the child’s life including school, friends, extra-curricular activities and most significantly, her relationship with the father.

Burden of proof

[14] In this case, the parties did not dispute that the child spends the vast majority of time in the care of the mother. Section 39.4(6) provides that in this circumstance, the party opposing the relocation has the burden of proving that the relocation would not be in the child’s best interests.

[15] The relocation provisions contained in the CLRA do not specifically address the burden of proof when relocation is requested on an interim basis. Prior to the enactment of the relocation provisions in the CLRA, the parent seeking permission to relocate before trial had to meet the demanding burden of proof set out in Plumely v. Plumely, 1999 CanLII 13990 (ONSC) which will be addressed below. Since the enactment of the relocation provisions in the CLRA cases cited by counsel continue to refer to Plumlee in connection with interim relocation requests.

[16] The father argues that the mother has the burden of proof of demonstrating that the requested relocation would be in the child's best interests under the Plumely standard.

[17] The mother argues that the father has the burden of proof of demonstrating that the requested relocation would not be in the child's best interests pursuant to s. 39.4(6).

[18] As there is conflict in determining which party will bear the burden of proof, I will rely upon s. 39.4 (7) which provides that both parties to the proceeding shall have the burden of proving whether the relocation is in the best interests of the child.

Legal considerations – Interim relocation

[19] Both parties submit that the Gordon v. Geortz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, and Plumely, factors should be considered in determining whether the child should be allowed to relocate under a temporary order.

[20] Counsel for the father also asks that the court consider the “additional” principles regarding relocation referred to in Boudreault v. Charles, 2014 ONCJ 273, at para. 26, when making a temporary order.

[21] I agree that these cases are relevant to the extent that they have not been supplanted by the relocation provisions contained in the CLRA that were passed after those cases were decided: see Barendregt v. Grebliunas, 2022 SCC 22, at paras. 108 and 110.

[22] In determining best interests in the context of relocation, the Supreme Court of Canada in Barendregt observed at para. 97 that:

“… 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.”

[23] At para. 98, the court recognized that “untangling family relationships may have profound consequences, especially when children are involved. A child’s welfare remains at the heart of the relocation inquiry but many traditional considerations do not readily apply in the same way.”

[24] Under the Gordan principles, the first determination on a motion to change, including on an interim basis, as is the case here, is whether there has been a material change in circumstances. Relocation in this case, as is typically the case, constitutes a material change in circumstances: Barendregt, para. 113. The change in the father’s parenting time with the child should relocation be allowed will constitute in this case a material change in circumstances. The evidence does not suggest that the relocation proposed was contemplated by the parties when the Hebner J. order was made.

[25] The second stage of the Gordan analysis requires a determination of whether relocation is in the best interests of the child: Barendregt, para. 115. Counsel agree that best interests considerations are those set out in s. 24 and ss. 39.4 of the CLRA.

[26] Courts should be careful before permitting relocation on a temporary basis. The decision may have a strong influence on the final outcome of the case: Goodship v. McMaster, [2003 CarswellOnt 4502 (Ont. C.J.)], 2003 CanLII 53670, as cited in Boudreault v. Charles, [2014 CarswellOnt 7523 (Ont. C.J.)], at para. 26(b); and Johnston v. Johnston, 2006 CarswellOnt 5060 (Ont. S.C.J.), at paras. 12 and 14.

[27] In summary, the court must determine if moving to Calgary with the mother and the concomitant change in the parenting schedule is in the child's best interests. The child-focussed assessment can be difficult at the interim stage if the affidavit evidence is conflicting. Courts are cautious in making significant changes in the child's circumstances on an interim basis because of the summary nature of the motion and the expected short duration of the order pending trial.

Evidence

[28] Before addressing the best interests factors, the matter of conflicting affidavit evidence must be addressed.

[29] In this case, there is conflict in the evidence about certain events. The affidavit evidence has not been tested by cross-examination. In the case of Seng v. Dowling, 2021 ONSC 1491, at para. 11, the court stated that

“… such are the inherent limitations surrounding necessary urgent interim court decisions in family law litigation. At best, courts are required to make such determinations based on reasonable inferences to be drawn from undisputed facts and the competing affidavit evidence.”

[30] In this case, counsel referred to the s. 112 Report filed by the Children’s Lawyer. On motions for temporary orders, case law suggests that courts should put little, if any weight, on these untested reports. In this case, the father responded to the Report with a 63-paragraph dispute. Counsel for the father stated that the dispute was based on four categories of complaint:

(1) The clinician did not consider the relationship the child had with his extended family in London.

(2) The clinician did not consider the father’s claim that the child’s views were as a result of being coached by the mother.

(3) The clinician did not properly assess the mother’s allegations of assault she made against the father.

(4) The clinician prioritized the child’s relationship with the maternal grandmother over her relationship with the father.

[31] When the motion was argued, the response of the Children’s Lawyer to the dispute had not been received.

[32] The father’s complaints about the Report center on the conclusions and recommendations reached by the clinician. In deciding this case, I will not rely on the conclusions and recommendations reached. However, I can consider the information, which is evidence, contained in the Report. The clinician was an independent information gatherer. I can also consider the statements made by the child to the assessor and weigh them in the context of the other evidence and submissions made. As the court noted in Forte v. Forte, 2004 CanLII 7631 (ONSC), at para. 8:

“ … It is not the report’s recommendations, but its substance and analysis that is of value.”

[33] Both parties objected to the admissibility of some of the statements contained in the other’s affidavits. These objections as to admissibility were primarily on the basis of hearsay, expressions of the witnesses’ feelings and beliefs, or legal argument as opposed to relevant facts. Neither counsel addressed these objections in oral argument. Nonetheless, I am mindful of the objections raised and accord little, if any, weight to the impugned evidence.

The Child

[34] Determining best interests including in the context of a request for an interim relocation order, requires the court to consider the needs and circumstances of this child.

[35] In their respective affidavits, the parties did not provide much evidence of the child’s temperament, level of maturity, strengths, and fears. This information was found primarily in the report of the clinician.

[36] In the clinician’s Report, the mother described the child as:

“… excellent, very mature and insightful for her age. She is loving and kind and she is smart. She is thoughtful and wears her heart on her sleeve. She feels everything deeply…”

[37] The father described the child to the clinician as:

“… as being like a teenager. She has a bit of ‘sass’, likes to be outside… is active and pretty good in school.”

[38] The clinician described the child as:

“… an engaging child who demonstrates a connection to both her parents. She cares about others and for her age, is highly aware of how her behaviour may impact others. She is keenly aware that she will bear the emotional burden if she moves or stays.”

[39] The clinician also identified the child as needing support with reading, though she presents very well in conversations.

[40] The child’s maternal grandmother described the child as “happy and bright.”

Best Interests Considerations CLRA s. 24(3)(a) – (j)

a. The child’s needs, given the child’s age and stage of development, such as the child’s need for stability

[41] This child is a physically healthy child who is progressing in school on an average basis. She needs to be provided with the love and support of her parents and extended family. She also needs assistance in overcoming her modest educational deficits. The mother has attended to this.

[42] This child needs to be insulated from the ongoing conflict between the parties. She is aware, as the clinician observed, how her behaviour impacts others and will bear the emotional burden whether she moves or stays in London.

[43] This child also needs to be able to maintain her connection with both parents as well as her extended family.

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

[44] The child is well connected to both parents.

[45] The evidence discloses that the child has a very close relationship with her maternal grandparents and especially her maternal grandmother. She views these grandparents as providing her with a lot of support.

[46] There is conflict in the evidence regarding the child’s relationship with the father’s extended family including her paternal great grandfather with whom the father resides. The child’s relationship with the father’s extended family was not explored by the clinician, apparently because the father did not mention them to her.

c. Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent

[47] The father argues that the mother is not supportive of his relationship with the child. Some of the evidence he presented to support this conclusion is contradictory. For example, he claimed the mother threatens to reduce his time with the child when he does not agree with her. However, also according to the father, the mother frequently relies on him to care for the child outside of the scheduled time he has the child in his care.

[48] Both parties recognize that if they are not living in the same city, they will need to accommodate extended times when the child will be in the other’s care.

d. The history of care of the child

[49] When the parties separated, they agreed that it was in the child’s best interests that the mother be granted custody and the father access.

[50] Though they have not always followed the access schedule contained in the Hebner J. order, the child has lived primarily with the mother. The only exception to this occurred during the months of September and October 2020. This was the mother’s first year in law school at the University of Windsor. During those two months, the child lived with the father during the week and with the mother on the weekends. This ended in November 2020 with the mother moving back to London. Her evidence is that the child was not able to tolerate that schedule and was unhappy in the father’s care. The father acknowledged in his evidence that the child did miss her mother during the week.

[51] Since September 2022, the child has been in the father’s care every Wednesday over night and every Saturday over night.

[52] The father argues that the mother controls his time with the child and that he wants more time with her. He did not take any formal steps to change the time he has the child in his care until responding to the mother’s request to relocate. For whatever the reason the care arrangement was in place, that was the arrangement that the child experienced.

[53] There is a history of the parties being in different provinces while the child was in the mother’s care. The parties were able to maintain the child’s relationship with the father during that period. Eventually the father did arrange through his employment to be transferred to London to be closer to the child.

e. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained

[54] The child was interviewed by the clinician twice. These interviews took place privately at a public library. On the first occasion, the mother brought the child and on the second, the father did. During the interviews, the child was described as talkative, answered questions, made good eye contact and appeared relaxed. In both interviews, the child “indicates and maintains” according to the clinician, that she wishes to relocate where her maternal grandparents reside. She had thought out a plan of how she would maintain her relationship with the father.

[55] The father claims the child’s wishes are the product of the mother’s coaching and should carry no weight. The mother denies influencing or trying to influence the child. The clinician did not allude to any undue influence by the mother such that the child’s views should be ignored or discounted.

f. The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage

[56] The mother’s family are members of a Manitoba First Nation. Some of her family members speak Cree and Ojibwe though the mother does not.

[57] The mother and maternal grandmother reported to the clinician that they “have a more direct link to Indigenous family members in Alberta…”

[58] The father argues that this factor should be discounted in assessing the child’s best interests because the mother did not raise it as an issue in her first affidavit and the Band is in Manitoba, not in London or Alberta. Both of these observations by the father are correct. However, this was not a factor motivating the request to relocate but is a factor the court must consider in a best interests analysis.

g. Any plans for the child’s care

[59] The father wants the child’s care and involvement in the community to continue as it has except that there be a 2-2-3 parenting schedule.

[60] The mother’s plan is to recreate, in Alberta, the care and the child’s involvement in the community as is presently the case in London with the addition of the significant support she will receive from the maternal grandparents. She also proposes a schedule of contact between the father and the child.

h. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child

[61] Both parties are willing to care for the child.

[62] Both parties will need the help of others to care for the child during the time they attend to their employment responsibilities.

[63] The maternal grandmother and the maternal grandfather are available to help with childcare and other functions to assist the mother. Financial assistance will also be provided by them to the mother.

[64] It is of concern that the father was not able to maintain the child in his full-time weekday care when the mother moved to Windsor for her first year of law school. It is to his and the mother’s credit that when the plan was not working as expected a new plan was put in place – the mother moved back to London and the child resumed living in her primary care.

i. The ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child

[65] Communication between the parties is strained currently.

[66] The exchange of texts submitted in evidence by the father dealing with childcare issues also demonstrates an ongoing strain in communication between the two. However, I also take into account the submission of the mother that the emails submitted by the father were curated by him and they lack context and completeness.

[67] I also take into account that the parties have cooperated in meeting the needs of the child despite the strained nature of their communication.

j. Any family violence and its impact on, among other things

[68] The parties provided conflicting evidence regarding this factor. The father denies all of the mother’s allegations against him in respect of family violence.

[69] The clinician did review records from the local Children’s Aid Society (2018) and police service (2015 – 2018) in which the mother disclosed “violence, including sexual violence perpetrated against her… by the father.” The only evidence of criminal charges being brought related to an incident in August 2018 where the father was alleged to have damaged a door at the mother’s home. He was charged mischief, but no conviction was recorded. When asked about this incident by the clinician the father chuckled and stated that the charges were dropped. He denied the event took place.

Relocation Best Interests Factors CLRA – s. 39.4(3)

a. The reasons for the relocation

[70] In Barendregt v. Grebliunas 2022 SCC 22, at para. 128, the court noted

… There will often be a connection between the expected benefits of the move for the child and the relocating parent's reasons for proposing the move in the first place. Relocation for financial reasons, for instance, will clearly carry implications for a child's material welfare.

[71] The mother seeks permission to relocate with the child so that she can receive the support of her parents in caring for the child while the mother pursues better economic prospects not available to her in London.

[72] The mother is about to start the articling phase of her legal education. She has job offers in both London and Calgary. The Calgary position will provide her with more income and a greater likelihood of a permanent position once she is called to the Bar.

[73] In Calgary, the mother will have the support of the child’s maternal grandparents, and especially the maternal grandmother, in caring for the child while she works.

[74] The maternal grandparents lived in London until the summer of 2022. While in Ontario, the maternal grandparents provided the mother with support. Also, while in Ontario, the child became very close to her maternal grandmother. The clinician heard from the child how special that relationship is to the child. This is not in dispute.

[75] The mother does not have any other family support in London and found herself to be isolated since the maternal grandparents moved to Calgary. The mother and father agree that accommodating each other’s needs for flexibility in arranging childcare is strained and often results in conflict.

[76] Members of the extended paternal family have not been of assistance to the mother in caring for the child.

[77] The mother’s evidence, which I accept, is that her income in Calgary will be greater than is possible for her to earn in London and that her expenses will be reduced especially with the help she will receive from the maternal grandparents.

[78] If the mother stays in London, she will need to move in any event because her landlord is selling her north-end residence. The mother investigated the cost of renting in her current neighbourhood. The rent will be more than she can afford so she will need to move to another neighbourhood where housing costs are less expensive. This will result in the child having to change schools.

b. The impact of the relocation on the child

[79] The child will have less frequent in person contact with the father if she relocates to Calgary. There would be no effect on the father’s ability to have regular and frequent virtual contact with the child.

[80] The move to Calgary will result in the child spending longer periods with the father but less frequently than is currently the case.

[81] The child will leave behind her current social network if allowed to move and will need to develop a new one through a new school, new neighbourhood, and family contacts. However, even if the child remains in London, she will need to change schools and develop a new social circle.

[82] In Calgary, the child will have frequent contact with her maternal extended family and especially her maternal grandmother, a person with whom she is very close and who she misses.

c. The amount of time spent with the child by each person who has parenting time or is an applicant for a parenting order with respect to the child, and the level of involvement in the child’s life of each of those persons

[83] This factor is addressed in the consideration of the “The history of care of the child” factor set earlier in this endorsement.

[84] It is the mother who attended to the child’s need for tutoring without the father’s support. This tutoring helped the child improve.

d. Whether the person who intends to relocate the child has complied with any applicable notice requirement under section 39.3 and any applicable Act, regulation, order, family arbitration award and agreement

[85] Notice was not raised as an issue that would be determinative or significant in determining the child’s best interests.

e. The existence of an order, family arbitration award or agreement that specifies the geographic area in which the child is to reside

[86] There is no order that specifies in which geographical location the child is to reside.

f. The reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of decision-making responsibility, parenting time or contact, taking into consideration, among other things, the location of the new residence and the travel expenses

[87] The mother’s proposal is a reasonable one in the circumstances.

[88] The mother’s plan is to move to a location where she will have the support, including finances and childcare, while she takes the steps needed to launch her legal career. She has a reasonable plan for maintaining the father’s relationship with the child. She proposes extended periods during the year when the child could be in the father’s care. She also proposes there be some flexibility in scheduling to take into account the cost of transportation and the child’s school schedule.

[89] The evidence satisfies me that the mother’s request to move and her plan to keep the father’s relationship with the child secure is not based on a desire to thwart the father’s involvement with the child.

g. Whether each person who has decision-making responsibility or parenting time or is an applicant for a parenting order with respect to the child has complied with their obligations under any applicable Act, regulation, order, family arbitration award or agreement, and the likelihood of future compliance

[90] The parties have accommodated the other, albeit with some difficulty since separating. When the mother moved from Alberta to Ontario, and left the father behind, the parties were able to arrange ongoing contact.

[91] The evidence does not suggest that either party would not comply with whatever order is made regarding their respective contact/parenting time with the child.

Decision

[92] I find that it would be in the child’s best interests if the mother was permitted to relocate the child’s residence to Calgary at this time. The mother has met her onus. The father has not.

[93] The mother has been the child’s primary caregiver, at least since the parties separated.

[94] When the parties separated, they agreed that it would be in the child’s best interests that the mother have custody (now decision-making responsibility) of the child and that she reside primarily with her.

[95] The strength of the mother and child relationship was demonstrated when the mother moved back from Windsor to London during her first year of law school because the child appeared unable to tolerate the mother being away from her every week. The father acknowledged that the child missed the mother. He did not resist, by way of legal action, the return of the child to the mother’s care after two months with him. Being in the mother’s care the vast majority of the time is the child’s reality.

[96] The mother’s plan for the child’s care while in Calgary will recreate the support she had in London except for the schedule of contact she has with her father and his family.

[97] This is not a case where the mother’s plan is uncertain and ambiguous. On the unchallenged evidence of the maternal grandmother, the plan for the child will include a community, residence, school, and amenities. The proposed move is a well-planned one and for a reasonable purpose.

[98] Instead of the child’s contact being with the father’s extended family, it will now be with the mother’s family and especially the maternal grandmother with whom, as noted earlier in these reasons, she has a close relationship.

[99] The career and economic benefits to the mother are reasonable and understandable. The economic and financial benefits of moving to Calgary where the mother will have support, financial security, and the ability to complete her legal training and establish a career are properly considered in assessing whether or not the move is in the child's best interests.

[100] She is not moving to defeat the father’s relationship with the child.

[101] This will not be the first time the child has had a long-distance relationship with the father. When this occurred in the past, they worked on it.

[102] The mother’s evidence did not seek to denigrate the father’s relationship with the child. The mother has made a proposal for periods of extended in-person contact, and frequent virtual contact with the child. Her plan recognizes that the child should have contact with the father to the full extent available to sustain their relationship. Her plan includes holiday time, virtual communication and time in Alberta should the father wish. This plan is consistent with the child’s best interests.

[103] An improvement in the mother's emotional, and financial circumstances can only benefit the child and therefore be in the child's best interests.

[104] I have also considered the Plumely considerations. These considerations are set out at para. 7 as follows:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.

2. There can be compelling circumstances which might dictate that a justice ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of the children might dictate that they commence school at a new location.

3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent's position will prevail at a trial.

[105] There will be a genuine issue for trial regarding what is in the child’s best interests. A trial judge will be better able to determine the relevant considerations including (a) whether the child’s clearly stated views and preferences were unduly influenced by the mother, (b) the extent to which, if at all, the allegations of family violence against the father are a factor in determining best interests, and (c) the weight to be given to the recommendations of the clinical assessor having regard to the investigation carried out and the particulars of the father’s dispute.

[106] However, even though there is a genuine issue for trial, I am of the opinion that there is a strong possibility that the mother, as the child’s primary caregiver who has had her in her care a vast majority of the time, whose reason for the relocation and comprehensive plan of care and contact are reasonable, will be successful at trial.

[107] What makes the move most compelling at this time is related to the mother’s career development. She has secured an advantageous articling position that will provide her with more remuneration and potential for employment in the future than she was offered in London. If not permitted to move, then this opportunity in Calgary will be lost and her economic and financial prospects become less certain. And, as I stated earlier, an improvement in the mother's emotional, and financial circumstances can only benefit the child and therefore be in the child's best interests.

[108] When all of these factors are considered from the child’s point of view, the disruption the move will cause and the reduced in person contact the child will have with the father must give way to the long-term stability, family support and economic benefits attendant with the relocation. Pending the completion of this matter either by trial or settlement, the child’s contact with the father should be as much as is consistent with her best interests.

[109] In Konkin v. Aguilera, 2010 ONSC 4808 (Ont. S.C.J.), at para. 27, Justice Corbett addressed the concerns courts have in allowing an interim relocation as follows:

27. Finally, I acknowledge some of the cases consider that it is unwise to make interim orders on mobility issues, when the matter may remain contested at trial. That is a fine ideal, but the court process does not follow the same rhythm as real life. The goal of an interim order here, as in other contexts, is to preserve a reasonable state of affairs that accords with the best interests of the child pending trial. As I indicated to the parties orally, I would have preferred to have heard this issue as a trial, to have listened to the various family members testify, and to have more time to reflect on the matter. But a decision must be made now, rather than months or years from now, and a legitimate and timely request to move should not be thwarted by the inevitable effluxion of time inherent in the litigation process.

[110] I agree with these comments and find that they are applicable to this case. Unfortunately, it will be many months before this case could be reached for trial in this jurisdiction.

Order

[111] For these reasons, a temporary order shall issue as follows:

1. The applicant is granted permission to relocate the child to Calgary, Alberta.

2. Pending further order of the court, the access provisions contained at paragraph 3 of the final order of Hebner J. dated October 25, 2018, shall be suspended and replaced with the following:

The father shall have contact with the child, pending the trial of this case as follows:

a) from August 1, 2023 until August 31, 2023 and for four weeks during the child’s summer vacation from school in 2024, if the case has not yet been tried or settled.

The mother or her designate, shall be responsible to pick up the child from the father on August 31, 2023 and bear the cost of the child’s transportation to Alberta. The parties shall share equally the child’s 2024 transportation cost to London and return to Calgary.

b) for 10 days during the child’s 2023 Christmas school holiday.

The parties shall share equally the child’s transportation cost to London and return to Calgary. The father or his designate, shall be responsible for picking up the child from the mother’s residence at the beginning of the school vacation. The mother or her designate shall be responsible for picking up the child from the father’s residence at the end of the 10-day period.

c) during the child’s 2024 school March Break.

The parties shall share equally the child’s transportation cost to London and return to Calgary. The father or his designate, shall be responsible for picking up the child from the mother’s residence at the beginning of the March Break. The mother or her designate shall be responsible for picking up the child from the father’s residence at the end of the March Break.

d) the parties will take a flexible approach regarding the schedule, taking into consideration flight availability and costs of travel. The child may also be required to miss some school days to accommodate reasonable travel arrangements.

e) If the father is in Alberta, he shall have reasonable in person contact with the child on reasonable notice to the mother.

f) The father shall have reasonable virtual contact with the child.

3. As agreed by the parties, the father shall pay to the mother costs of these motions in the amount of $1,500 all inclusive.

4. If there are any other contact terms the parties wish to address and cannot agree upon, they may make arrangements through the trial coordination office to appear before me.

[112] I wish to thank counsel for their thorough and helpful submissions.

“Justice B. Tobin”

Justice B. Tobin

Date Released: July 24, 2023

[^1]: On these motions, the necessity of adding the child’s biological father as a party in the motion to change was raised. Given the requirements of s. 62(3), providing who should be a party, this issue should be addressed.