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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 Official Court Reporters INDEX EXHIBITS: NO. DEFINITION PAGE C TYPEWRITTEN ACCESS AGREEMENT 10 Official Court Reporters i 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 Official Court Reporters 1 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. Official Court Reporters 2 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 Official Court Reporters 3 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 Official Court Reporters 4 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. Official Court Reporters 5 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 Official Court Reporters 6 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 Official Court Reporters 7 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 Official Court Reporters 8 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 Official Court Reporters 9 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 Official Court Reporters 10 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). Official Court Reporters 11 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 Official Court Reporters 12 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 Official Court Reporters 13 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 Official Court Reporters 14 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, Official Court Reporters 15 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 Official Court Reporters 16 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 Official Court Reporters 17 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 Official Court Reporters 18 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 ................................. 12 13 14 Certified Pursuant to Rule 723 of the Rules of Court 15 16 17 Jane Romanowich, CSR(A) 18 Court Reporter 19 20 21 22 23 24 25 26 27 Official Court Reporters 19
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