Decision Content
J.P.M. v. D.E.H., 2013 NWTSC 47 S-1-FM-2013-000028
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
J.P.M.
Applicant
- v -
D.E.H.
Respondent
__________________________________________________________
Transcript of the Decision delivered by The Honourable
Justice R. Nation, sitting in Yellowknife, in the Northwest
Territories, on the 6th day of June, A.D. 2013.
__________________________________________________________
APPEARANCES:
Ms. J. Olson: Counsel for the Applicant
Ms. B. Rattan: Counsel for the Accused
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INDEX
EXHIBITS:
NO. DEFINITION PAGE
C TYPEWRITTEN ACCESS AGREEMENT 10
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1 THE COURT: Good morning. Please be
2 seated.
3 This is the decision in an application that
4 was brought by Ms. M for two forms of relief.
5 First, she asked for sole custody of J and,
6 secondly, she asked to be allowed to move J from
7 Yellowknife. Firstly, she wants to be allowed to
8 take J on a trip to Ecuador and Ireland from the
9 beginning of September 2013, for six months in
10 Ecuador and, thereafter, likely three months in
11 Ireland. Her maternity leave requires her to be
12 back by the end of June of 2014 if she returns to
13 work in Yellowknife; and, secondly, to have
14 permission to relocate with the child to an
15 undetermined place in Canada, most likely British
16 Columbia, after her return from the trip in the
17 summer of 2014.
18 This is the first time the issue of
19 parenting has been before the Court.
20 As the focus of this hearing and decision is
21 on the child, I first want to spend some time
22 describing J.
23 J was born October 19th, 2003. She is
24 currently nine years old and in Grade 4. She is
25 a good student. She is in the French immersion
26 program. She lived the first two and a half
27 years of her life in Calgary and, since then, she
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1 has lived in Yellowknife. No health problems
2 were identified for J other than she has had a
3 number of throat infections and she may have to
4 have her tonsils removed. She loves and is loved
5 by her mother and her father.
6 J has a half-brother, J., who is one and a
7 half; the child of her father and his wife,
8 Denise. She recently has another half-brother,
9 C., who is three weeks old, born to her mother
10 and her mother's fiancé, C.M.
11 J is involved in various extracurricular
12 activities. She has taken Ukrainian dancing,
13 plays piano, done basketball programs, and is
14 involved in various clubs at school. From all
15 accounts, she a happy, healthy nine-year-old. And
16 I have to say from observing at trial that both
17 parents are very attached to J, each appreciates
18 how blessed they are to have her in their lives,
19 and she is an integral part of both families as
20 they have developed over time and as they
21 continue to develop.
22 The relevant law that I have to apply is not
23 in dispute. The question is: What is in the
24 best interests of J? One has to determine what
25 is in the best interests of the child looking at
26 the child's needs and the ability of the parents
27 to satisfy them.
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1 There is a mobility issue here and so I am
2 guided by the test set out by the Supreme Court
3 of Canada in Gordon v. Goertz. Because there is
4 no existing order in existence, I do not have to
5 worry about the threshold test of a change of
6 circumstance. I have to consider the following
7 seven factors: (1) the existing custody
8 arrangement and the relationship between the
9 child and the custodial parent; (2) the existing
10 access arrangement and the relationship between
11 the child and the access parent; (3) the
12 desirability of maximizing contact between the
13 child and her parents; (4) the views of the
14 child; (5) the custodial parents' reason for
15 moving only where it is relevant to the parents'
16 ability to meet the needs of the child; (6) the
17 disruption of the child of a change of custody;
18 and (7) the disruption to the child consequent on
19 removal from family, schools, and the community
20 he or she has come to know.
21 So dealing with those:
22 (1) The existing custody arrangement and the
23 relationship between the child and the custodial
24 parent.
25 J has always been in the primary residential
26 care of her mother. She spent the first two and
27 a half years of her life in Calgary with her
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1 mother in what would best be described as a sole
2 custody situation with occasional access to the
3 father. J and her mother lived with her maternal
4 grandparents for a period and then in close
5 proximity to them in Calgary. J then moved to
6 Yellowknife with her mother and has been here
7 since. J's mother has been a major parental
8 force in her life. Her mother is marrying this
9 August, so J will have a new stepfather, and she
10 has a new baby half-brother. It has to be
11 considered that J has a strong tie to her mother
12 with recognition that there are significant
13 changes happening in that family unit.
14 (2) The existing access arrangement and the
15 relationship between the child and the access
16 parent.
17 J saw her father only occasionally when she
18 lived in Calgary. However, at age two and a
19 half, she came to Yellowknife and has seen
20 her father regularly since. He saw her Wednesday
21 and Friday after school, to the evening at first
22 and then the Friday evening was increased
23 overnight into Saturday. In addition, her
24 father, and then later her father and his wife,
25 Denise, would take J for holidays in the summer
26 and have her at their house when the mother's
27 work took her out of Yellowknife, approximately
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1 three times a year, Monday to Friday, and also
2 occasional holiday trips that she took. J spent
3 before and after school time in the father's home
4 for a year while his wife, Denise, was on
5 maternity when J. was born in October of 2011.
6 Also, Mr. H worked from the fall of 2010 until
7 January of 2013 at J's school, so he would see
8 her at school and she could drop by his office at
9 times.
10 Thus, Mr. H has had access to J. All
11 reports and all the evidence I heard is that J
12 has a close relationship with her father, and it
13 is clear that J has become integrated into his
14 family both immediate and extended.
15 (3) The desirability of maximizing contact
16 between the child and the parents.
17 There is a need to keep J in contact with
18 both her parents. That happens in Yellowknife
19 and has happened without any court involvement or
20 a formal order. The families have worked this
21 out by agreement. J became an integral part of
22 both parents' families as they have evolved, and,
23 as I said earlier in court, I am impressed with
24 the level of communication and facilitation that
25 has occurred to this point. Both mom and dad are
26 very involved with J and they are supported by
27 extended families in the Yellowknife area.
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1 The difficulty with Ms. M's proposal is that
2 it puts J a long way from her father from
3 September 2013 until next summer. Realistically,
4 because of her age, she cannot travel
5 internationally alone and the cost of travel
6 likely means that email, Skype, or electronic
7 contact will be the only contact that her father
8 would have her during that year.
9 In addition, Ms. M wants permission to
10 relocate to British Columbia. She has no
11 specific plans. It appears that the couple hopes
12 to buy property in the interior of B.C. So it is
13 hard to know at this time what kind of travelling
14 is involved exactly. However, it is clear it
15 will be considerable distance and expense,
16 involving air travel, particularly as J can
17 likely not fly unaccompanied for a period of time
18 until she is 11 or 12 or whatever the rules of
19 the airline are. So there is a high cost of
20 travelling involved.
21 (4) The views of the child.
22 J is nine years old. Her views were not
23 conveyed directly. Ms. M's evidence made it
24 clear that J would be delighted to go to Ecuador,
25 and she reported that when there was discussion
26 of the parents going to Ireland without J, she
27 was upset, and thus the request that J be allowed
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1 to be away for a complete year, including the
2 trip to Ireland.
3 It does not surprise me that a nine-year-old
4 would be thrilled to do anything, to go on
5 holiday anywhere. A nine-year-old may not
6 appreciate the length of time away from both
7 school, friends, and family. I have to say also
8 there is no evidence of her views about the move
9 to British Columbia or elsewhere, which is quite
10 evident because there are no details involved, so
11 there would be no specific information or
12 anything for her to react to.
13 I also want to indicate that although one
14 counsel did invite me to meet with J, I do not
15 think that is necessary in this case, and I think
16 that meeting with a nine-year-old can be
17 questionable in a situation like this.
18 (5) The custodial parent's reason for moving
19 only where it is relevant to the parent's
20 abilities to meet the needs of the child.
21 Ms. M has a one-year maternity leave, she is
22 marrying someone who is retired and wants to
23 return to B.C., and she wants to return to
24 southern Canada. What is important is that any
25 move is not motivated by a desire to cut the
26 father out of J's life. It is clear that Ms. M
27 has made efforts, considerable efforts, in the
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1 past, particularly when the child was young, to
2 facilitate the father's contact with the child.
3 (6) The disruption to the child of a change of
4 custody.
5 J has lived in Yellowknife most of her life.
6 She has spent overnights and periods of time at
7 her father's house, she gets along with his wife,
8 and she has a half-brother and all reports are
9 that she is very connected to him. There appears
10 to be an easy flow between their houses as they
11 are in close proximity in Yellowknife. If there
12 was a change in residential care to her father's
13 house, this would be a house that she is used to
14 and a situation she is used to being in.
15 However, it would be a huge change for her to be
16 away from her mother. She has not been away from
17 her mother for any period more than a few weeks.
18 A change of custody, meaning that she stays in
19 Yellowknife, would keep her in her school,
20 neighbourhood, and a household she is used to,
21 but the adjustment to life without her mother
22 present would be significant.
23 (7) The disruption to the child consequent on
24 removal from family, schools, and the community
25 she has come to know.
26 Dealing first with the request that J go to
27 Ecuador and Ireland for a year with her mother
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1 and her mother's family, this would obviously
2 disrupt her schooling as she would need to take
3 distance learning courses. She would be away
4 from Yellowknife where her life has been. This
5 is a one-year plan to take advantage of a
6 maternity leave. It would give some family time
7 with her new baby half-brother and her new
8 stepfather, but it would present challenges to
9 her to stay in touch with her father because a
10 physical visit is virtually impossible.
11 The plan to move away from Yellowknife
12 afterwards is a more significant move for her as
13 it would mean she would not be returning to her
14 community and its supports, she would not have
15 close contact with her father and his family, and
16 it would completely change all aspects of her
17 live in terms school, friends, and living.
18 Children can be flexible when they are
19 young, but, really, there is no evidence before
20 me of any of the details: place, schooling,
21 French immersion, any of those issues, so I am
22 unable to evaluate that plan at the current time.
23 As I understand it, the mother at this time
24 is asking for permission to explore moving to
25 southern Canada and, if possible, she would make
26 that decision with the child's best needs in
27 mind. The reality of that decision is that there
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1 is a high cost associated with visits and the
2 relationship with both parents needs to be
3 fostered as both love their child and both seem
4 to have loving, caring partners.
5 Ms. M's current partner is older than she
6 is. He is retired and he has expressed time and
7 willingness to help with child care. Mr. H's
8 current spouse is a school teacher and has school
9 holiday times off, and by that I mean summer and
10 other holiday time. Mr. H recently has taken a
11 job that gives up the holiday school times, and I
12 have no idea of Ms. M's holiday situation because
13 she has not made a decision of what she would do
14 at the end of her maternity leave or, if there is
15 a job for her, where they intend to move.
16 In terms of plans this summer, the parties
17 have reached an agreement which was typed up, and
18 I am just going to have that marked as Exhibit
19 "C" in this trial, and that will be the access
20 over the summer.
21 EXHIBIT "C": TYPEWRITTEN ACCESS
22 AGREEMENT
23 THE COURT: In terms of Ms. M's travel
24 plans, she testified that she has booked, through
25 points or other manners, tickets that leave
26 Yellowknife August 31st to Toronto. She and her
27 family are attending a hundredth birthday party
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1 and then leaving Canada to Ecuador September 6th,
2 and their current tickets have them arriving back
3 in Canada on March 7th, 2014. She wishes to
4 travel to Ireland, but there are no specific
5 tickets or plans in place to that.
6 When I look at all those factors, I have to
7 say that the mother was in a sole custody
8 situation for the first two and a half years of
9 J's life. Since her return to Yellowknife, both
10 parents have been involved. It is clear the
11 mother has had residential care, but the
12 situation has been much closer to a joint custody
13 situation in terms of decisions. Most
14 importantly, it is clear that J is now strongly
15 bonded to both families.
16 Ms. M's family is in a state of transition
17 with a new baby and a marriage this summer.
18 Mr. H is married with another child, J. Each
19 parent has relatives and extended family in
20 Yellowknife, and I understand that that changes
21 with time. The extended family is clearly
22 connected to J.
23 So child custody where the parents have
24 never been married is to be determined under the
25 Child's Law Act. Section 17 outlines the best
26 interests of the child test and the factors are
27 set out in 17(2).
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1 In argument, the question was raised that
2 the father had not actually filed a motion for
3 custody, although his affidavit, at paragraph 45,
4 sets out his position that he thinks J's best
5 interests are served if he and Ms. M were to have
6 joint custody. The Notice of Motion filed by
7 Ms. M puts custody in issue and asks that she
8 have sole custody with the right to move the
9 child from the jurisdiction. In the
10 circumstances, a viva voce hearing and the issue
11 of mobility and residential care being an issue,
12 this court has jurisdiction to decide the custody
13 arrangement for the child and should do so.
14 So I direct that the parents shall have
15 joint custody and parenting of J with a need for
16 consultation about major decisions in her life.
17 Each shall have full access to all medical,
18 dental, schooling information, and everything
19 that goes with the joint custody arrangement.
20 There is no question from the evidence that the
21 parents can parent cooperatively and can consult
22 in decisions and there is no reason that this
23 should not continue.
24 I need to deal with the parenting plan over
25 the next year as the parents are unable to agree.
26 Ms. M wishes to take the child to Ecuador for a
27 six-month period and she has made arrangements in
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1 terms of accommodation and flights. She has
2 looked into long distance education for J and
3 this has been discussed in the family. Several
4 of Ms. M's relatives, including her mother from
5 Ireland, are booked to visit her while she is
6 there. Mr. H opposes this. He consents to three
7 months. But this was to be his Christmas with J,
8 as the parties were alternating Christmases, and
9 he has concerns about the length of time away
10 from him as dad and from his immediate family and
11 relatives here in Yellowknife, as well as the
12 length of time away from school.
13 Ms. M also hopes to go to Ireland with J and
14 her family March to June of 2014, but there are
15 no specific bookings or details of that plan.
16 In addition, I am asked to make the decision
17 as to whether Ms. M is free at her option to
18 pursue a plan that would see her relocating with
19 her new husband, Mr. M., and C. and the
20 issues about her ability to take J with her in
21 any relocation.
22 My decision is that in September Ms. M will
23 be free to take J to Ecuador for a six-month
24 period. Upon return to Toronto in March, Ms. M
25 will return J to Yellowknife so she can finish
26 her school year here. Residential care of J will
27 be with her father from that period until the end
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1 of June. This will facilitate the six-month
2 period that Ms. M wishes in Ecuador. However, I
3 am mindful that during that period, J will likely
4 not see her father other than through Skype or
5 electronic means, and so there is a period of
6 time for J to be in Yellowknife to get
7 re-established at school.
8 If, during that period, which I understand
9 may well be a period that Ms. M may travel or may
10 be arranging things in Yellowknife if she is
11 planning to move -- if during that period Ms. M
12 is in Yellowknife, there is to be generous access
13 to J during that period.
14 In the summer of 2013, each party will have
15 one month with J. In the fall of 2013, if
16 Ms. M --
17 MS. OLSON: Excuse me, My Lady. I think
18 you mean 2014.
19 THE COURT: Oh. 2014. Sorry. In the
20 fall of 2014, if Ms. M wishes to relocate outside
21 of Yellowknife, I will allow her to do so, with J
22 to be in her residential care. Looking at J's
23 age, her background, and situation, I find that
24 is in her best interests. However, that
25 relocation is to happen only if there is a
26 realistic, practical way to keep her in contact
27 with her father as it will involve a significant
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1 loss of time, and both will have to bear the
2 financial costs of access.
3 So if Ms. M decides to relocate, J is to
4 spend six weeks every summer with her father in
5 Yellowknife or elsewhere where her father and his
6 family may wish to vacation. She is to have
7 alternate Christmas holidays, and that is the
8 whole Christmas holiday vacation, in Yellowknife
9 starting with Christmas of 2014.
10 Ms. M will be responsible to take J to and
11 from the nearest airport and to fly back and
12 forth with J until she is at an age that she can
13 travel by herself.
14 The parties are to share equally the cost of
15 airline tickets, and I want the parties to be
16 realistic about this because it is conceivable
17 that that cost could be upwards of $10,000 a year
18 when one considers the two trips around Christmas
19 and that two people have to fly there and back,
20 and I know that that will be a significant load
21 to each family, and so it is a serious
22 consideration for Ms. M in terms of her
23 relocation, but it is an obligation. Secondly,
24 J's access to her father electronically is to be
25 facilitated by Skype, email, and all other means.
26 Thirdly, if Mr. H or any of his extended family
27 are in the place or vicinity where J is living,
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1 they are to have access to her at that place. I
2 do not mean at J's house, but if J lives in, for
3 example, Kelowna and Mr. H is in Kelowna for a
4 weekend or a visit, she is to have access to him
5 then. And if Mr. H can afford it, he will have
6 the right to have every spring break, school
7 holiday, in Yellowknife, and that is at his
8 option.
9 So I just want to say to both of you, there
10 is a clear financial cost to this plan and,
11 Ms. M, you have to make that commitment because
12 both the monetary aspect and the time flying back
13 and forth is part of the permission to relocate.
14 I am also going to direct any jurisdiction
15 in relation to J's custody and access is to
16 remain in Yellowknife, if there is a dispute
17 between the parties, so that the jurisdiction
18 remains here.
19 You know, there was also a request that I
20 deal with support, but I think that has to be
21 left between the parties to see to their
22 disclosure and work that out. I am not going
23 make at the current time any direction that the
24 cost of access is out of support. I think it is
25 important that support continue. However, the
26 parties can make their own financial arrangement
27 as they want to about the airline tickets
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1 because, clearly, each of them has to bear half
2 of the cost.
3 So I believe that deals with all matters.
4 MS. RATTAN: Ma'am, with respect, there
5 were a number of occasions when the Court
6 referred to Whitehorse.
7 THE COURT: Oh, I'm sorry. I have to
8 apologize. I know that is probably very
9 offensive to people who live in Yellowknife. For
10 some reason, I just have Whitehorse on the brain.
11 I apologize if I said Whitehorse. It should be
12 Yellowknife.
13 MS. RATTAN: As well, I think in the
14 beginning there was reference to July 31. I
15 think it's August 31.
16 THE COURT: Oh. For the trip to Ontario?
17 MS. RATTAN: Yes.
18 THE COURT: Okay.
19 MS. OLSON: Just a couple of things. Can
20 I understand that child support is to be paid in
21 accord with the guidelines?
22 THE COURT: Yes. I mean, obviously child
23 support should be paid in accordance with the
24 guidelines. And also I'll direct that each party
25 has to give the other a copy of their tax returns
26 by May 1st of each year, and then the financial
27 disclosure just flows. It is a court order and
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1 there does not have to be an issue about has it
2 happened or has it not.
3 MS. OLSON: I'd also like to raise the
4 issue of costs.
5 THE COURT: What would be your submissions
6 in that regard?
7 MS. OLSON: Well, it's our submission that
8 Ms. M's application has largely been successful
9 and, therefore, we believe that there should be
10 costs and costs.
11 THE COURT: Ms. Rattan?
12 MS. RATTAN: Well, with respect, in effect,
13 it's a divided decision in the sense that it is
14 not sole custody that is provided to Ms. M but
15 joint custody to the parties. Yes, she is
16 successful in being able to relocate, but we
17 submit that in these type of situations that this
18 matter be considered as a divided victory.
19 THE COURT: Okay. In the circumstances, I
20 am going to direct that each party bear their own
21 costs. You can go through, and there has been
22 divided success, but more than that, you know,
23 both parents love this child and the motivation
24 to come to court was not at all unfounded. It is
25 an extremely difficult decision for parents and I
26 can understand how one might feel that that is a
27 decision they cannot make themselves just because
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1 of the enormity of a child moving away from a
2 jurisdiction. So I am going to direct that each
3 party bear their own costs.
4 All right. Thank you, counsel, for your
5 submissions, and to both of you, best of luck
6 with J in the future. You have had good
7 communication and I hope that that can continue
8 and you see J grow through her teenagerhood and
9 into a young adult and be proud of your parenting
10 at the end of the day.
11 .................................
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14 Certified Pursuant to Rule 723
of the Rules of Court
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Jane Romanowich, CSR(A)
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