Court File No.: FS-21-19-00 Date: 2023-11-21

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Kathryn Shoemaker, Applicant L. Conti, for the Applicant

- and -

Larissa Shoemaker (Derkson), Respondent A. Bell, for the Respondent

Heard: September 11, 12, 13, 2023, via ZOOM at Fort Frances, Ontario

Regional Senior Justice W. D. Newton

Decision On Motion

Overview

[1] Larissa Derkson (Larissa [1]) is the birthmother of Anna who was born in 2018. At that time, Larissa and Kathryn Shoemaker (Katy) were in a relationship and were married in November 2019. They lived together in Fort Frances. The parties separated less than two years later. Shortly after separation, Larissa took Anna to Saskatchewan to visit family, with Katy’s permission, for a few days. Larissa did not return Anna to Fort Frances, and Katy obtained an order for Anna’s return to her care in Fort Frances. Anna was apprehended and returned to Katy on July 23, 2021. Larissa has continued to reside in Saskatchewan.

[2] The issues for this trial are decision-making and parenting time. My difficult task is to determine whether it is in Anna’s best interest to continue to reside with Katy in Fort Frances or for Anna to move to Saskatchewan to live with Larissa.

Procedural History to Date

[3] On July 9, 2021, Nieckarz J. made a temporary order that Anna be returned to Katy’s primary care and that Larissa have parenting time in the District of Rainy River. The order provided that if Anna was not returned, the police were to apprehend her so that she could be returned to Katy’s care.

[4] A further temporary parenting time order was made by Fregeau J. on February 21, 2023, which provided for in-person parenting time for Larissa, with Anna in the District of Rainy River on certain specified dates, and which set out terms for virtual parenting time.

[5] On March 8, 2023, Nieckarz J. directed that this matter proceed to trial by videoconference, and gave directions for the trial.

The Facts

[6] Counsel have made my task somewhat easier by agreeing to the following facts:

Agreed Facts

BACKGROUND

1. The Applicant, Kathryn Shoemaker, born February 11, 1995, is now 28 years old.
2. The Respondent, Larissa Shoemaker (Derkson), born May 20, 1998, is now 25 years old.
3. The parties began living together in 2018 and were married on November 16, 2019.
4. The child, Annaleah-Rose Marie-Dawn Derkson (hereinafter referred to as "Anna") was born on February 15, 2018, in Fort Frances, Ontario.
5. The Respondent, Larissa Shoemaker, is the birth mother of Anna.
6. The Applicant has stood in the place of parent to Anna since her birth.
7. The parties separated on June 13, 2021, when the Respondent moved out of the family home in Fort Frances, Ontario.
8. Anna was 3 years-old on the date of the parties' separation.
9. Anna remained in the care of the Applicant in the family home in Fort Frances, Ontario, at the time of the parties' separation.
10. On June 30, 2021, the Respondent picked Anna up for her parenting time. The Applicant had previously provided consent for the Respondent to travel to Saskatchewan with Anna, from July 4, 2021, to July 7, 2021.
11. The Respondent travelled with Anna to Regina, Saskatchewan; however, the Respondent did not return Anna to the Applicant's care on July 7, 2021.
12. On July 9, 2021, the Applicant brought an urgent motion, and obtained an Endorsement and Order for the return of Anna to her care. The Temporary Order of Justice Nieckarz, dated July 9, 2021, ordered that Anna be returned to the primary care of the Applicant by no later than July 15, 2021, at 4:00 p.m.
13. The Regina Police Services apprehended Anna from the Respondent on July 23, 2021, and returned her to the Applicant's care.
14. Questioning of both parties took place on November 15, 2021.
15. Anna currently resides with the Applicant in Fort Frances, Ontario, and has since the parties' date of separation.
16. Anna has only ever habitually resided in Emo, Ontario, and Fort Frances, Ontario, within the District of Rainy River.
17. Anna resided with the Respondent for a period of two and a half (2 1/2) weeks from July 6, 2021, to July 23. 2021 in Regina, Saskatchewan.
18. Anna has completed Junior Kindergarten at St. Mary School in Fort Frances, Ontario, and will be commencing Senior Kindergarten there in September 2023.
19. The Respondent has another child, Alaric Strayer, born August 30, 2022 (hereinafter "Alaric"), who is Anna's biological brother.
20. In addition to Anna, the Applicant currently resides with her partner, Heather Walls (hereinafter "Heather"), and Heather's daughter, Emma, in Fort Frances, Ontario.
21. The Respondent currently resides with her partner, Devon Strayer, and Alaric, in Weyburn, Saskatchewan.

PARENTING TIME

22. The Respondent has had in-person parenting time with Anna on the following dates, in the District of Rainy River, since Anna was returned to the Applicant's care on July 23, 2021: a. August 7 to August 8, 2021; b. December 10 to December 12, 2021; c. December 23, 2022; d. January 28, 2023; e. January 29, 2023; f. February 24, 2023; g. February 25, 2023; h. February 26, 2023; i. March 31, 2023; j. April 1, 2023; k. April 2, 2023; and l. May 27, 2023 to May 28, 2023.
23. The Respondent has had other virtual parenting time with Anna, in addition to the in-person parenting time above, since her return to the Applicant's care on July 23, 2021.

FINANCIAL INFORMATION

24. The Applicant is employed full time as a Geological Technician at New Gold Inc.
25. The Respondent is currently off work with Alaric, and anticipates that she will continue to be off work for the duration of the trial.
26. The parties have settled the issues of retroactive child support to August 31, 2023, and property on a final basis, by way of Partial Minutes of Settlement dated July 20, 2023.

Evidence at Trial

[7] The trial was conducted via ZOOM teleconference at the request of all parties and with consent of the Court as the parties and witnesses resided several hundred kilometers apart in Ontario and Saskatchewan.

[8] In addition to the parties, Tori Dubois, Heather Watts, Betty Shoemaker, and Selina Haltom testified on behalf of the applicant. Heidi Derkson, Joshua Derkson, Richelle Eddington, Cherish Gervais, Kyla-Dawn Derkson, Brenda Wickstrom, and Michael Derkson testified on behalf of the respondent. With permission, the first names of the parties and the witnesses were used during the trial.

[9] Given the detailed agreed facts as set out above, much of the testimony will not be reviewed in detail.

Kathryn (Katy) Shoemaker

[10] Katy resides with Anna, who is 5 ½ years old, along with her partner, Heather Watts, and Heather’s 13-year-old daughter, in Fort Frances.

[11] Anna calls Katy “momma” or “mom”.

[12] Katy works seven days shifts, week on/week off, for a mining company near Fort Frances. The shifts are 12 hours from either 7 AM to 7 PM or from 7 PM to 7 AM.

[13] Heather is employed with community living providing care for the elderly. Anna refers to Heather as “mom” or “mommy”. Katy describes the relationship between Heather and Anna as “a very close bond”.

[14] Katy describes Anna’s relationship with Katy’s mother, Betty Shoemaker, as “like the best of friends.” Anna calls Betty “Nanny” and Katy’s father is “Pops”.

[15] Another person in their circle is Tori Dubois who has been Katy’s best friend since kindergarten. Anna calls Tori “auntie”. Tori’s son, who is the same age as Anna, is Anna’s best friend. They are in the same class at school. They play together and visit each other’s home.

[16] Kindergarten reports for Anna are positive: “She continues to come to school with a smile and is ready to learn. She is friendly and well-liked by many.” In March of 2023, Anna received a Catholic Virtue Award – Love and Justice.

[17] Anna has a family doctor and dentist in Fort Frances.

[18] Anna participates in gymnastics in Fort Frances.

[19] Anna struggles with separation anxiety which was precipitated by her removal to Saskatchewan. She has attended play therapy with Selina Haltom, a social worker.

[20] Katy met Larissa and they started dating in September 2017. In January 2018, about a month before Anna’s birth, Larissa moved in with Katy and her parents in the District of Rainy River. They, and Anna, lived with Katy’s parents until 2019. In November 2019, Katy and Larissa were married, and in 2020, they moved with Anna to Fort Frances and remained there until their separation on June 13, 2021.

[21] Larissa left the home stating the relationship was over and said that she was going to stay at a friend’s house. According to Katy, Larissa said that Anna could stay with Katy until Larissa found better housing.

[22] Larissa took Anna to Regina for three days and then returned Anna to Katy’s care. Katy and Larissa agreed to a week on/week off rotation. However, while Anna was in Larissa’s care, and while Katy was at work, Larissa entered Katy’s home, took Anna’s belongings, and took Anna to Saskatchewan.

[23] As admitted in the agreed facts, a court order was obtained, and Anna was returned to Katy’s care on July 23, 2021, with the assistance of the police. Katy testified that Anna had lost about 5 pounds from her normal weight of 34 pounds by the time she was returned.

[24] Anna had therapy with Selina Haltom to deal with the separation anxiety.

[25] Both Katy and her partner, Heather, have completed parenting courses with Ms. Haltom.

[26] Katy’s relationship with Larissa’s family was strained, as Larissa’s family did not approve of her having a child out of “wedlock” or being in a same-sex relationship. Only one member of Larissa’s family attended Katy and Larissa’s wedding.

[27] In cross-examination, struggles with remote communication with others were identified. At times, Katy will end video chats, for example if Larissa’s current partner attempts to chat with Anna.

Tori Dubois

[28] Tori and Katy have been friends since kindergarten. She is employed as a blast hole driller at the same mine that Katy works at, near Fort Frances.

[29] She has known Anna since birth and describes her relationship with Anna as like an aunt. She describes Anna as a very intelligent girl who “thrives on consistency”. She also describes Anna and her son as best friends.

[30] Tori testified that the relationship between Larissa and Larissa’s family pre-separation was “pretty much nonexistent”.

Heather Watts

[31] Heather and Katy have been together for about two years. Heather has a daughter, Emma.

[32] Heather describes Anna as very high energy and very smart. She likes to play “school” all the time.

[33] Heather is also a shift worker, so a typical day in their house depends on who is working. If Katy is not working, then they look after the children together. If Katy is working, then she will get the children ready for school and pick up Anna from the bus at the end of the school day. They have a special family breakfast on Sundays, which are also an electronic-free day.

[34] She testified that Anna’s separation anxiety has improved over time.

Betty Shoemaker

[35] Betty Shoemaker is Katy’s mother. She is retired from Canada Border Services but still works part-time at the post office on weekends.

[36] She describes Anna as her “grandbaby”. She testified that when Larissa came into her life, Larissa asked her if she would be the baby’s grandmother and in her life. Betty agreed.

[37] She describes her relationship with Anna as very close. She testified that they have a “tight bond” because after Anna was born, Anna lived at her house for the first 19 months of her life. When Larissa moved in with them, she did not have any thing for the baby, so Betty reached out to family and friends for baby supplies, and purchased what was needed. Betty was present at Anna’s birth, holding Larissa’s hand on one side with Katy on the other side. She said that Larissa’s father showed up at the hospital but that was the only contact she had with any member of Larissa’s family.

[38] After Katy and Larissa moved out of Betty’s home, they lived just five minutes away, and so they continued to spend a lot of time together. Now that Katy resides in Fort Frances, their contact is less frequent, but Betty sees Anna about two days a week, with a sleepover every week or two. She sees Anna at gymnastics.

Selina Haltom

[39] Ms. Haltom has a master’s in Social Work and is a clinical social worker. She is a therapist who works with children from ages of three upwards. When Ms. Haltom saw Anna, she was employed by Kenora/ Rainy River Children Family Services.

[40] She started seeing Anna in July 2022 and continued to see her until May 2023 for about 20 sessions. Each session was usually 30 minutes. When she started working with Anna, the concerns included emotional dysregulation with lengthy “meltdowns”, crying, and clingy behaviour. She said that Katy was very engaged and committed in helping Anna overcome her challenges.

[41] Ms. Haltom testified that Anna made significant progress. She was, with time, engaged, independent, and spontaneous, with “zero issues” leaving her caregivers. She described Anna as a “brilliant young girl, incredibly smart,” with a vocabulary “through the roof”.

[42] Ms. Haltom admitted that she had no contact with the Larissa. She also confirmed that Katy and Heather attended the 10 hour-long parenting support sessions to assist with Anna’s progress.

Larissa Derkson

[43] Larissa lives in Weyburn, Saskatchewan with her partner, Devon Strayer. They have a son who was born on August 30, 2022. She has been on maternity leave since then, but her maternity leave ends in March 2024. She will be returning to work as a contractor doing general carpentry.

[44] She testified that she moved to the Fort Frances area from Saskatchewan in 2017 because her father, who was a pastor in the area, had a stroke.

[45] She testified that she was Anna’s primary caregiver from birth. She also testified that she would take Anna to daycare when Larissa was in school or at work.

[46] She described Anna as the “smartest girl in the world”, and “light and bubbly and happy.” She said that Anna loves gymnastics, doing her makeup, and playing with her Barbies and her little brother.

[47] She testified that she decided to move back to Saskatchewan because her entire family was there. She says that she has a “very large support system.” She describes her family as “very close” and that they get together “at least twice a week”.

[48] Larissa identifies as Métis and participates in cultural activities with her brother.

[49] She said that Katy did not allow Larissa’s family to have contact with her while they were together.

[50] When Larissa left the relationship, she went to stay with a friend.

[51] Larissa’s relationship with Anna post-separation has been difficult. Initially, Facetime communication with Anna was set for an hour a day but was then changed by Katy to half an hour every second day. She said that calls are declined “a lot of the times”, with Katy saying that Anna is sleeping, or is not there, or Anna doesn’t want to talk to Larissa. In-person visits are expensive, with each trip costing between $1000 and $1600.

[52] If Anna comes to live with her in Saskatchewan she would be enrolled in a local school.

[53] In cross-examination, Larissa admitted that she told people that her parents did not approve of her being in a relationship with a woman, and that she had moved in with Katy and her family because the living conditions with her parents were intolerable.

[54] Her family moved back to Saskatchewan in 2019, and between 2019 and 2021, she only visited family in Saskatchewan on three occasions with Anna.

[55] At the time of separation, Larissa admitted that she and Katy had agreed to a shared parenting schedule, on a week on/week off basis, and that she was planning on getting her own accommodations in Fort Frances. She testified that this conversation occurred a few days after separation. She also admitted that she had changed her mind. and decided to move to Saskatchewan with Anna and did not tell Katy that she had decided to do so. She led Katy to believe that Anna would be returned to Fort Frances at the end of the agreed three-day visit.

[56] Larissa was asked whether she was aware of and understood the endorsement of Nieckarz J., which provided:

Having said this, I am concerned about the child being exposed to removal from the respondent by way of police enforcement. She is a young child, and this could be traumatic. The respondent shall have an opportunity to voluntarily return the child and avoid the trauma to her. If she fails to do so, the police will enforce – police enforcement is required. This will no doubt be a factor that the court consider detrimental to the respondent’s ability to act in the best interests of the child.

[57] She admitted that she understood the endorsement and agreed that the police apprehension of Anna was very traumatic for both her and Anna.

[58] Larissa was also cross-examined about her in-person and video visits with Anna after she was returned to Fort Frances.

[59] She confirmed that she saw Anna in August 2021 for two days, and then for three days in December 2021. During 2022, she only saw Anna in person on one day in December 2022. She said that she is not able to travel for six months because she had a high-risk pregnancy. In-person visits in 2023 included two days in January, three days in February, one day in March, two days in April and two days in May, with no other in-person visits in 2023. She admitted that, at times, her video calls with Anna have been inconsistent on her part.

[60] She confirmed that the only reason she moved to Saskatchewan was because her family, and Anna’s father’s family, were there.

Heidi Derkson

[61] Heidi Derkson is Larissa’s mother. Larissa is the fourth of nine children. She describes her family as “close knit”. Her husband is a minister, so they moved between Saskatchewan and Manitoba and Northwestern Ontario often.

[62] They lived in the Fort Frances area from 2014 until 2019.

[63] She said that she was not invited by Larissa to attend Anna’s birth.

[64] She has had few opportunities to observe interactions between Larissa and Anna but says that they have love for each other.

[65] She admitted that the only member of her family to attend Larissa’s wedding was her son Michael.

[66] Larissa lives in Weyburn, Saskatchewan, which is approximately 100 km, or a little over an hour drive, from Regina, where Mrs. Derkson and the rest of the family resides, except for their one son who resides in Saskatoon. No family members, other than Larissa, reside in Weyburn.

Joshua Derkson

[67] Joshua is Larissa’s brother. He testified that they are “very close” and visit quite often. He lives in Regina. He testified that Larissa moved to Weyburn about a year ago.

[68] He has communicated with Anna over video calls with Larissa.

[69] He and Larissa have started to explore their Métis heritage.

[70] He describes his sister as a very caring, loving, kind person, and describes his interactions with Larissa and Anna as very positive.

Richelle Edgington

[71] Richelle Edgington is Larissa’s friend. She resides in Weyburn. She has known Larissa since Larissa moved to Weyburn in the fall of 2021. She has a daughter the same age as Anna.

[72] She describes Larissa as a “fantastic mother” with unmatched patience.

[73] She has been present for some of Larissa’s video calls with Anna. She has only seen Anna in person once in May of 2023.

Cherish Gervais

[74] Cherish Gervais resides in Fort Frances and met Larissa when they were both in “hair school” in Fort Frances in 2018 or 2019.

[75] She has seen Anna since she was a baby and said that Anna would come to school with Larissa.

[76] She testified that when she sees Anna in Fort Frances, she is prevented from speaking to her by Katy.

Kyla-Dawn Derkson

[77] Kyla-Dawn resides in Regina, Saskatchewan, and is Larissa’s older sister. She works as an early childhood educator.

[78] She has not seen Anna in-person often. She met Anna when she was three months old and then again when she was in Regina in July 2021. She has had minimal electronic communication with Anna. She sees Larissa about once per month.

[79] Kyla-Dawn did not know where Larissa lived when Larissa moved from Fort Frances to Regina. She did not know when Larissa moved to Weyburn.

Brenda Wickstrom

[80] Ms. Wickstrom lives in Fort Frances. She babysat Anna for a few years. She estimated that she babysat Anna 10 to 15 days per month when Katy was working and Larissa was at school.

[81] She complained that when she would see Anna in Fort Frances, Katy would take Anna out of her sight. Larissa has taken Anna to visit her when she has been in Fort Frances.

[82] When she has seen Anna and Larissa together, she testified that they get along “very well”.

Michael Derkson

[83] Michael is one of Larissa’s older brothers. He lives in Saskatoon which is about a four-hour drive to Weyburn.

[84] When Katy and Larissa separated, Larissa and Anna stayed with him in a spare bedroom for a few weeks. He described Larissa and Anna’s relationship as a very good. He testified that he has not seen Anna since the summer of 2021.

[85] He did not know when Larissa moved to Weyburn.

Positions of the Parties

[86] Both parties have provided proposed draft orders and are in agreement with some of the terms of the order I am to make.

[87] Katy seeks an order that provides that:

a. Katy has sole decision-making for Anna; b. Anna reside primarily with Katy in the District of Rainy River; c. Larissa’s parenting time with Anna take place in the District of Rainy River and that Larissa is not to travel outside the District of Rainy River with Anna without Katy’s written consent; d. After 12 consistent visits between Larissa and Anna in the District of Rainy River, Larissa may begin exercising parenting time with Anna in Weyburn, Saskatchewan with Katy’s written consent. In the event that there is a period of six weeks where no visits between Larissa and Anna have occurred, then the prior visits will no longer count towards the 12 visits required; e. The dates and duration of Larissa’s parenting time with Anna shall be agreed upon by the parties in advance, in writing; f. Larissa will provide Katy with notice of any travel plans with the child outside the District of Rainy River including dates, locations, flight itineraries, and telephone numbers for contact, a minimum of seven days before any such travel.

[88] Katy also seeks a term for police enforcement should Larissa not return Anna as agreed or if Larissa removes Anna from the District of Rainy River without prior written consent.

[89] Larissa seeks an order that provides that:

a. Larissa has sole decision-making for Anna or alternatively that there shall be joint decision-making; b. Anna reside primarily with Larissa in Weyburn, Saskatchewan; c. Alternatively, that Anna reside with one party during the school year and the other party in the summer months; d. Katy’s parenting time shall take place in Saskatchewan and that Katy is not to travel with Anna outside the province of Saskatchewan without Larissa’s written consent; e. The same 12 visit schedule as proposed by Katy is required to have visits outside of Saskatchewan; f. The dates and duration of Katy’s parenting time with Anna shall be agreed upon by the parties in advance, in writing; g. Katy will provide Larissa with notice of any travel plans with the child outside the province of Saskatchewan including dates, locations, flight itineraries, and telephone numbers for contact, a minimum of seven days before any such travel.

[90] At the heart of the submissions made on behalf of Katy is the fact that Anna has a strong connection to her community in the District of Rainy River and lifelong bonds with her immediate and extended family in that area.

[91] Since Anna’s return to Fort Frances on July 23, 2021, Anna has only spent 16 days with Larissa.

[92] On the analysis of all applicable factors with respect to best interests of the child including the additional relocation factors, Katy submits that all factors favour Anna remaining in the District of Rainy River with Katy.

[93] Larissa’s argument is also based on the same best interest factors and the submission is that Larissa and her family have a close relationship with Anna despite the distance and the lack of frequent in-person time with Anna. Larissa also submits that it is important for Anna to have a close relationship with her biological brother, Alaric.

[94] Accordingly, my decision will be based on my assessment of those best interest factors.

The Law

[95] The Divorce Act provides as follows:

Best interests of child

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including;

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (d) the history of care of the child; (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (g) any plans for the child’s care; (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; (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (j) any family violence and its impact on, among other things, (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred; (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (d) the physical, emotional and psychological harm or risk of harm to the child; (e) any compromise to the safety of the child or other family member; (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

Parenting order and contact order

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

[96] Recent amendments to the Divorce Act specifically addressed relocation. One such amendment was that a person seeking to relocate the child is required to give 60 days notice prior to the expected day of relocation. Another amendment sets out additional factors to be considered, and another allocates the burden of proof:

Best interests of child — additional factors to be considered

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16 ,

(a) the reasons for the relocation; (b) the impact of the relocation on the child; (c) 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; (d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9 , provincial family law legislation, an order, arbitral award, or agreement; (e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which 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 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 (g) 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.

Factor not to be considered

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

[97] In the 2022 case of Barendregt v. Grebliunas, 2022 SCC 22 [2], the Supreme Court of Canada recently restated the common law framework with respect to relocation cases and reiterated the relocation factors:

[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.

[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.

Analysis and Disposition

[98] The only consideration is the best interests of Anna with primary consideration of her physical, emotional and psychological safety, security and well-being.

Best Interests of Child

[99] Anna will be six years old in February 2024. According to the evidence, including the education records, she is developing as she should and, according to most witnesses, in some areas she is exceptional. I accept that there is a strong need for stability at this age and stage of development. I note the emotional difficulties caused by the separation in July 2021 which required counselling.

[100] Anna has resided all her life in the Emo and Fort Frances area with Katy and her extended family and friends, except for about three weeks in 2021. Since 2021 she has had 16 days of in-person visits with Larissa, and little contact with Larissa’s family. The need for stability favours not relocating Anna to Saskatchewan.

[101] I am satisfied that Anna has a strong relationship not only with Katy and her parents but also with Katy’s new partner, Heather. Heather is committed to her relationship with Anna and her participation in the parenting support sessions with Katy is evidence of that commitment. I accept that Betty Shoemaker is the only “real” grandmother that Anna has known. I also note the strong relationship that Anna has with Tori Dubois as “aunt”, and the close relationship that Anna and Tori’s son have as “best friends”.

[102] I do not doubt that there is a strong relationship between Larissa and Anna, but note the infrequent in-person visits and the, at times, sporadic video contact since July 2021. I heard no evidence at all about the relationship with Larissa’s current partner, Alraic’s father, and purportedly Anna’s father. He did not testify, nor did any of the witnesses called on behalf of Larissa speak of him. Although the relationship between Larissa and her family was described as “close” or “close knit”, the evidence does not lead me to that conclusion. Some family members did not know where Larissa lived when she returned to Saskatchewan. Some did not know when she moved to Weyburn which is over an hour away from Regina. No family members have had significant, meaningful contact with Anna since 2021. Although Richelle Edgington described Larissa as a “fantastic mother”, apart from one visit, she is not, at present, an important person in Anna’s life.

[103] The nature and strength of Anna’s familial relationships favours not relocating Anna to Saskatchewan.

[104] There is some evidence that neither Katy nor Larissa are as willing as they should be to support the development of Anna’s relationship with the other. I accept that, at least initially, Larissa intended to remove Anna from Katy’s life. I accept also that Katy has not been as open as she should be in supporting the development of relationships between Anna and other family members. I am satisfied that there have been failings on both sides when it comes to regular video communication.

[105] I am satisfied that the history of Anna’s care before separation involved both Katy and Larissa, Katy’s family, and Ms. Wickstrom. It did not involve Larissa’s family. Post-separation, Anna has been cared for by Katy, Katy’s parents, and Heather. Anna’s significant weight loss before she was returned to Katy’s care is not necessarily attributable to a lack of care and perhaps more attributable to the stress Anna felt in this situation. Indeed, Larissa was warned of the likelihood of trauma to Anna in the endorsement of Nieckarz J. made at the time of the initial court order to return Anna to Katy’s care. The history of care includes the necessary counselling with Ms. Haltom. It is in Anna’s best interest that the good care she has received to date continues.

[106] There is no direct evidence of Anna’s views and preferences given her age. I do not doubt that she wishes a relationship with both Katy and Larissa. I presume, based on the evidence, that the bond between Anna and Betty Shoemaker is very strong and note the “sleepovers”. I do not have any evidence that the bond with any of Larissa’s family would be as strong.

[107] I heard evidence that Larissa is exploring her Métis identity. I also heard evidence that there are opportunities to explore Indigenous heritage at Anna’s current school and that Heather’s daughter has Indigenous heritage. I am satisfied that both Katy and Larissa would adequately address Anna’s cultural, or heritage needs.

[108] If Anna remains with Katy, the plans for her care are to continue with the care currently provided by Katy, Heather, and Katy’s extended family in Fort Frances. If Anna resides with Larissa, the plan would be for Anna to be enrolled in school in Weyburn. Again, there is no evidence about care to be provided by Larissa’s current partner. Given the distance from her family, there is no evidence to suggest that Larissa’s family would be playing any role in Anna’s routine care.

[109] I am satisfied that both Katy and Larissa have the willingness to care for and meet Anna’s needs. Katy, Heather, and Katy’s extended family have demonstrated the ability to meet Anna’s needs. As Larissa has not had Anna in her care for significant periods, I do not have the confirmation that she is similarly able to meet those needs, but I have no doubt that she would do her best to do so.

[110] The fact that this litigation was required suggest that there is a lack of ability to communicate and cooperate on matters affecting Anna. As noted earlier, I am satisfied that there have been failings by each party when it comes to facilitating communications, and Anna’s relationship with, the other.

[111] Family violence is not a factor in this case.

Additional Factors to be Considered in Relocation

[112] Larissa’s stated reason for moving to Saskatchewan was because her family, and Anna’s father’s family, are there.

[113] However, shortly after returning to Regina where most of her family resides, Larissa moved about 100 km away to Weyburn. Larissa has been involved in a relationship with Alaric’s father for some time (born on August 30, 2022). I am not satisfied that the relationship between Larissa and her family is as “close knit” as was suggested. I do accept that, after her relationship with Katy ended, Larissa had little connection to the Fort Frances area. However, Larissa admitted that she initially agreed to share parenting with Katy in Fort Frances and then deliberately breached that agreement without notifying Katy when she took Anna to Saskatchewan. The reasons for relocation do not benefit Anna other than to permit her to develop relationships with Larissa’s family; however, the relocation does appear to benefit Larissa on an emotional level to some extent. There is no evidence that the move was for any other reason.

[114] The impact of relocating Anna to Saskatchewan would be profound. The evidence supports the conclusion that Anna is a sensitive child who has separation issues. Uprooting her from the only community that she has known, from Katy and Katy’s parents who have been involved in her life since her birth, from her friends, and from her school will, without a doubt, cause challenges.

[115] There is no evidence before me to as to how Larissa intends to address those challenges. I am satisfied that the impact of the relocation on Anna would be negative based on her reaction to the unilateral relocation in 2021.

[116] Since 2021, Katy, Heather, and Katy’s extended family are the ones who have cared for Anna. Apart from 16 days, Larissa and her extended family have had little involvement other than video calls.

[117] Although there was no order prohibiting Anna’s relocation to Saskatchewan in 2021, there was an oral agreement between Larissa and Katy that they would co-parent in Fort Frances. Larissa unilaterally and, without notice to Katy, breached that agreement. The order of Nieckarz J. gave Larissa the opportunity to return Anna to Katy’s care without police involvement. Unfortunately, police involvement was required to enforce that order. As Nieckarz J. noted, this could be a factor that the court considers in determining Larissa’s ability to act in Anna’s best interest. I appreciate that there were some issues with the order initially, but I also am satisfied that Larissa knew that this would be traumatic for Anna.

[118] Larissa, as the party proposing to relocate Anna has not addressed Katy’s parenting time other than to offer the same terms that Katy has proposed for parenting time for her, notwithstanding that she is seeking to relocate Anna.

[119] Taken as a whole, the best interests analysis and the additional factors to be considered lead to the conclusion that relocation should not be ordered in this case, and that Anna should reside primarily with Katy in the District of Rainy River. Similarly, based on the history of care since July 2021, I also conclude that it is in Anna’s best interest for Katy to have sole decision-making responsibility.

[120] I decline to place any limitation upon future parenting time such as the requirement for 12 in-person visits before parenting is allowed outside the District of Rainy River. Similarly, I am not going to make a police assistance order at this time. There is no indication that either of these two orders are required at present.

[121] A final order shall issue and will follow the applicant’s proposed draft order except as hereinafter set out. The order shall issue containing paragraphs 1, 2, 3, 5, and 6, but not 4, of the applicant’s proposed draft order. The parties consent to paragraphs 7 to 13 of the applicant’s proposed draft order. With respect to child support, the order shall issue containing paragraphs 16, 17, 18, and 19 of the applicant’s proposed draft order. A divorce order shall issue upon filing of the requisite documentation. The order shall not include paragraphs 21 and 22 of the applicant’s proposed draft order.

[122] If costs are sought, the parties may make written cost submissions limited to five pages plus costs outline. The applicant’s cost submissions are to be submitted within 45 days of the release of this decision and the respondent’s cost submissions are to be submitted within 15 days thereafter. If no cost submissions are received within 45 days, costs will be deemed settled.

“Original signed by” The Hon. Justice W.D. Newton, R.S.J.

Released: November 21, 2023

[1] With the permission of all parties, first names were used throughout the trial and I will use first names in this decision. [2] 2022 SCC 22 [Barendregt].