nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 174 Date: 2007 05 22 Docket: F.L.D. No. 57/2003 Judicial Centre: Saskatoon, Family Law Division Counsel: Helen G. Semaganis for the petitioner Cheryl A. Cuelenaere and Cara L. Haaf for the respondent JUDGMENT GABRIELSON J. May 22, 2007 [1] The respondent, I.C.M., (the “father”) applied by notice of motion dated June 26, 2006, to vary the judgment of Justice P. Foley pronounced on June 8, 2005, (the “Original Custody Judgment”). The Original Custody Judgment provided for joint custody of the child, C.A.S.M.M., born June 26, 2001, (the “child”) with shared parenting according to a specified schedule. [2] The grounds for the application to vary the Original Custody Judgment were that J.C.M. (the “mother”) failed to abide by the terms of the original judgment and refused to provide the father with any information as to the location of herself or the child since the date of the original judgment. The application also requested an order providing only supervised access to the child by the mother. [3] The mother filed material indicating she was “vehemently opposed” to the father’s application for custody and “would prefer that she be in the custody of another relative such as my parents or even in foster care instead of with the respondent”. [4] The father filed a further application on December 8, 2006, seeking an order allowing him to relocate with the child to Whitehorse, Yukon, for residential purposes. While the mother originally opposed both applications, at the trial of the matter, she no longer opposed the application for the grant of sole custody to the father, but she continued to oppose the father’s application to be allowed to change the child’s primary residence to Whitehorse. The mother also asked that she be granted less restrictive access to the child. [5] The father was born and raised in the Yukon. The mother was born in Saskatoon but lived in the Yukon from ages two to seven. She then returned to Saskatoon until she graduated from high school. She returned to the Yukon, where she resided periodically. The mother and father met in March 2000 when both were working at Whitehorse. They started living together in September 2000. The child was born on June 26, 2001. They lived together as family in Whitehorse until March 2002 when they relocated to Saskatoon, Saskatchewan. [6] The father and mother separated in January 2003. The father returned to Whitehorse because of job opportunities there. The mother then commenced an action seeking custody of, and maintenance for, the child. The father, who had returned to reside in Saskatoon, opposed the claim by the mother for sole custody of the child and requested that there be joint custody with shared parenting of the child. [7] There were several interim applications during which the mother was granted interim custody of the child and the father was granted various access orders. Access continued to be contentious issue between the parties. The matter finally came before Justice Foley for trial on June 7, 2005. The mother did not attend the trial, although she did forward fax to the local registrar asking that the trial be postponed. As the trial had already been adjourned twice at her request and had finally been scheduled on peremptory basis, Justice Foley proceeded with the trial on June 7, 2005. His judgment, dated June 8, 2005, provided for joint custody with shared parenting on specified schedule. The judgment also ordered that neither party could remove the child from Saskatchewan save with the prior consent of the Court. [8] Following the Original Custody Judgment, the mother left Saskatoon, taking the child with her. She testified that she lived in various locations in Saskatchewan, British Columbia and Alberta. The father was not advised as to the child’s whereabouts and was therefore unable to have access to the child or the shared parenting that had been ordered. The father contacted the Saskatoon Police Service and received several orders from the Court to assist in locating the child. The mother was finally located in Edmonton, Alberta, where she was arrested on Canada‑wide warrant and charged pursuant to ss. 282(1) and 283 of the Criminal Code of Canada with child abduction and contravention of custody order in respect to the child. The child was returned to Saskatoon on June 24, 2006, and placed in the care of the father. The child has remained in the father’s care pursuant to interim custody orders. Interim orders have also provided for supervised access for the mother to the child. Issues [9] The issues are: 1. Should the father be granted sole custody of the child? 2. Should the father be allowed to relocate with the child to Whitehorse, Yukon? 3. What access to the child should be granted to the mother? Legislation [10] The Children’s Law Act, 1997, S.S. 1997, c. C‑8.2, applies to the circumstances of this case. The relevant portions of that Act are as follows: 3(1) Unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of child are joint legal custodians of the child with equal rights, powers and duties. 6(1) Notwithstanding sections to 5, on the application of parent ... the court may, by order: (a) grant custody of or access to child to one or more persons; (b) determine any aspect of the incidents of the right to custody or access; and (c) make any additional order that the court considers necessary and proper in the circumstances. (4) On application, the court may vary or discharge any order made pursuant to this section where there has been material change in circumstances since the date of the order. (5) When making an order pursuant to subsection (1), the court shall: (a) give effect to the principle that child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact; and (b) include in the order condition requiring any person who has custody of child and who intends to change the place of residence of that child to notify, as set out in subsection (6), any person who is granted access to that child or any other person who has custody of that child of: (i) the change; (ii) the time at which the change will be made; and (iii) the new place of residence of the child. (6) Any notification required pursuant to clause (5)(b) is to be given: (a) at least 30 days before the change; or (b) within any other period before the change that the court may specify. (7) When making an order pursuant to this section, the court, in the manner and on the conditions that the court considers appropriate, may provide for: (a) the division and sharing of parental responsibilities; and (b) the granting of access. (8) Where an order is made for supervised access pursuant to this section, the court may specify in the order the amount of any cost for the supervision that each party is required to pay. nan In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child; and (c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as father or mother. Analysis 1. Should the father be granted sole custody of the child? [11] The father’s position is that the mother ignored the orders of Justice Foley in the Original Custody Judgment, which provided for joint custody. He states that the mother was unwilling to share custody and prevented him from exercising his right to shared parenting of the child. He states that the mother’s removal of the child from Saskatchewan violated an express term of Justice Foley’s orders as well as previous orders. Finally, he states that the circumstances of the mother’s living arrangements since removal of the child from Saskatoon, such as living in campgrounds and with friends, placed the child at risk of harm. Accordingly, he states that it is in the best interests of the child that he be granted sole custody of the child. [12] The mother’s initial response in the materials filed was to reiterate her previous concerns for the safety of the child based upon allegations of sexual abuse by the father. However, at trial, the mother testified that, as result of counselling, she was now prepared to accept the findings of Justice Foley in his Original Custody Judgment that there was no evidence to support the allegations of sexual abuse, although she still had “concerns”. At trial the mother’s position regarding custody was that she was prepared to accept that the father should have sole custody of the child for an interim period but that she wished to work towards joint custody and shared parenting once she could demonstrate her ability to abide by court orders. [13] The Supreme Court of Canada, in the decision of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27, summarized the law regarding variation applications and mobility as follows: 49 The law can be summarized as follows: 1. The parent applying for change in the custody or access order must meet the threshold requirement of demonstrating material change in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) disruption to the child of change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [Emphasis in the original.] [14] Although the Gordon v. Goertz case dealt with custody order made pursuant to the Divorce Act, R.S.C. 1985, c. (2nd Supp.), its principles have been found to apply to orders made under The Children’s Law Act as well. Johnston v. Kurz, 2005 SKQB 362 (CanLII), 270 Sask. R. 194, aff’d 2006 SKCA 106 (CanLII), 285 Sask. R. 289. [15] As is indicated in the Gordon v. Goertz case, supra, and in s. 6(4) of the Act, the starting point for my review is whether the father has demonstrated material change in the circumstances affecting the child. The inquiry concerning the change in circumstances is to be based on the findings of Justice Foley, who made the Original Custody Judgment. Justice Foley’s decision is presumed to be correct. Talbot v. Henry (1990), 1990 CanLII 2648 (SK CA), 84 Sask. R. 170 (C.A.) at para. 28. This is so whether the mother appeared at the trial or not. [16] In his judgment, Justice Foley stated at paragraph 20(4): 4. Non‑compliance by the Petitioner, [J.C.M.], with the Shared Parenting Schedule as set out herein shall be material change in circumstances in any application to the Court for Variation brought by the Respondent as to the joint custody and/or shared residency granted to the parties herein. [17] Clearly, the mother in this case violated the terms of Justice Foley’s judgment. She removed the child from the Province of Saskatchewan, contrary to paragraph 20(5) of Justice Foley’s direction. In her evidence the mother suggested she was unaware of Justice Foley’s Original Custody Judgment, and that she left Saskatoon before it was rendered. did not find the mother’s evidence credible on this point, and wherever her evidence contradicted with that of the father, accepted the father’s evidence, who found to be credible and fair in his testimony. Even assuming she was unaware of Justice Foley’s order, which do not accept, the previous interim order of Justice Laing (as he then was), dated February 14, 2005, when he granted the mother’s application for an adjournment of the trial, was that “[t]here will be an order that all court orders that have been made on the file, including the residence requirement in the province of Saskatchewan, continue to be in place until further order of the court.” The mother was present when Justice Laing made this order. [18] Having taken the child out of the Province of Saskatchewan, the mother also failed to notify the father as to the child’s whereabouts and prevented the father from exercising the shared parenting, which the Original Custody Judgment had ordered. Accordingly, I am satisfied that there has been a material change in the circumstances which existed at the time of Original Custody Judgment when it was thought that the cooperation of the parties, which would be necessary for joint custody, was possible. As the mother demonstrated that it was not, review of Justice Foley’s order as to custody of the child is justified. [19] The threshold test having been met, according to the Gordon v. Goertz case, the second part of the inquiry will be whether change in the custody or access order is in the best interests of the child, having regard to all of the circumstances of this case. [20] In his decision at paragraph 8, Justice Foley stated: [8] The evidence of Dr. Greenough, together with that of the respondent’s mother and his friend and neighbour Dr. Vogt, clearly and convincingly established the respondent’s parenting skills, the strong bond he has forged between himself and his daughter despite the trying conditions under which he has operated, his fairness in recognizing and reiterating his belief that [C.A.S.M.M.] should have the advantage of exposure to both parents despite the unsubstantiated and indeed false allegations made against him by the petitioner. Again, at paragraph 10, Justice Foley stated: [10] He was, is and, am sure, will continue to be loving and caring parent while able to meet his daughter’s needs and be valuable, trusted role model in her life. Finally, at paragraph 11, Justice Foley stated: [11] This Court would have been amenable to an application for sole custody to the respondent with scheduled access to the petitioner had it been requested. ... [21] The father has now requested sole custody of the child based upon the mother’s refusal to accept the shared parenting arrangement and her removal of the child from Saskatchewan. [22] At the outset of this hearing, counsel for the mother indicated that in the circumstances, the mother was not opposing the father’s application for sole custody of the child. am also satisfied, based upon the evidence presented at trial, that it is in the child’s best interests for the father to have sole custody. The evidence indicates that since the child’s return to Saskatoon on June 24, 2006, and being placed in the father’s care, she has been well cared for by the father. The evidence provided by her kindergarten teacher, Ms. Gerein, is that the child is happy, very responsible and acts like an average five‑year‑old. She is meeting all the objectives of the school. Ms. A. Corkil, the director of the daycare centre where the child is cared for following kindergarten classes, also confirmed the child was well adjusted and has done well while in the father’s care. Ms. G. Martens, custody and access worker, testified that the relationship between the child and the father was very positive. She had no concerns regarding the father’s care. [23] Accordingly, based upon Justice Foley’s original findings, the evidence at trial that the father has cared well for the child when she was in his care, as well as the mother’s conduct since Justice Foley’s order in attempting to avoid shared parenting, I am satisfied that it is in the child’s best interests to grant sole custody of the child to the father. 2. Should the father be allowed to relocate with the child to Whitehorse, Yukon? [24] The father submits that it is in the child’s best interests to live with him in Whitehorse, Yukon, for the following reasons: (a) He has significant and strong family support in Whitehorse; (b) There is strong community support for the child in Whitehorse; (c) He has significant opportunities for employment, training and monetary advancement which would benefit the child substantially; (d) He has defined plan for the move; (e) He has defined plan for access for the mother to the child in Whitehorse; (f) There is an additional measure of security against abduction of the child by the mother because travel into and out of Whitehorse is restrictive; and (g) The mother has jeopardized the safety of the child on many occasions in the past. [25] The mother submits that it would not be in the child’s best interests to move to Whitehorse because it would limit her access to the child because of the distance between Saskatoon and Whitehorse. Her counsel also suggests that the seven factors set out by the Supreme Court of Canada in Gordon v. Goertz, supra, do not favour the order being granted. Her counsel refers to the cases of Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 136 D.L.R. (4th) 577 (Ont. C.A.) and Rosenau v. Rosenau, 2004 SKQB 275 (CanLII), R.F.L. (6th) 372. Finally, she suggests that this Court may lose jurisdiction if the move is approved, since any further applications for variation may have to be made in the Yukon. [26] In my opinion, the evidence at trial confirmed each of the seven points outlined by the father in support of the proposed relocation to Whitehorse. Furthermore, I have reviewed each of the seven factors listed in Gordon v. Goertz, which that Court states should be considered and find as follows: (a) The existing custody arrangement and relationship between the child and the custodial parent. [27] The father has had the care of the child since June 24, 2006, and by this judgment has now been granted sole custody of the child. The evidence at trial was that the father and the child have had good relationship since being reunited in June 2006. The description of this relationship as being very positive came from all the independent witnesses who testified at trial, including the teacher, the daycare worker, and the child and access supervisor. Their testimony confirmed that all of the child’s physical needs, including food and clothing, have been well provided. It also appears that the child is well adjusted socially and emotionally. (b) The existing access arrangement and the relationship between the child and the access parent. [28] Since July 2006, the mother has been entitled to supervised telephone access twice per week and since March 2007 has been entitled to supervised personal access for period of two hours every second week. The supervised personal access is also in the presence of member of security firm hired to prevent the mother from removing the child from the supervised access facility. The testimony of Ms. Martens, the custody and access worker, and Ms. Cotton, the security guard, was that the mother has been very cooperative and that there have been no problems during the supervised access visits. The mother does not dispute the need for supervised access at this point in time, but she hopes to move away from supervised secured access to more liberal access once she has demonstrated that she can be trusted not to attempt to abduct the child. It appears that the relationship between the child and the access parent (the mother) is therefore also very positive. (c) The desirability of maximizing contact between the child and both parents. [29] Supervised access is generally only temporary measure until such time as the safety of the child can be confirmed. It is impossible to tell at this point in time how long supervised access will be required. The mother still faces criminal charges pursuant to ss. 282(1) and 283 of the Criminal Code concerning the taking of this child out of the Province of Saskatchewan and preventing the father’s joint custody and shared parenting. The mother hopes to apply for changes in access once the charges have been dealt with in September 2007. While it is clear that it would be more difficult for the mother to exercise access in Whitehorse than it would be in Saskatoon, it is not impossible. Telephone access and internet access through the use of webcam would certainly still be available. The father has made arrangements for supervised access through third party, Ms. J. Laird, who works as counsellor in family services agency in Whitehorse. The cost for the mother in attending in Whitehorse is concern, but the father has proposed that he will forgo child support for the child so that the mother can save for access trips. While the mother is not currently working, having recently had second child, she has training as youth care worker in group homes and has the ability to earn significant income. [30] There is no doubt that if the father moves with the child to Whitehorse, personal contact between the mother and the child will be reduced. However, currently, personal contact is also minimal through secured supervised access. Such supervised access can also continue in Whitehorse, although it will not likely be as frequent because of the cost of travel between Whitehorse and Saskatoon. However, it is the mother’s own actions which have led to the reduction in the maximum contact between the child and both parents. Justice Foley’s order provided for shared parenting and would have resulted in such maximum contact. The mother ignored Justice Foley’s order, as well as previous access orders, and withheld the child from the father. (d) The views of the child. [31] At five years of age, the child is too young for the Court to take into account the views of the child. However, all of the evidence presented indicates that the child has very positive view of both the father and the mother. The child’s paternal grandfather, grandmother and uncle also testified at trial that the child has good relationship with each of them and they will assist in the child’s transition in Whitehorse. was impressed that the paternal grandmother, paternal grandfather and the father’s brother all travelled from Whitehorse to testify at the trial. None of the mother’s family, including her common law spouse, testified at the trial nor were they present in the courtroom to support the mother. (e) The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child. [32] The father testified that he wishes to move to Whitehorse to be closer to his family. His parents have expressed an interest and an ability to assist in childcare. Furthermore, he feels he can increase his income in Whitehorse by taking his journeyman carpenter training there. Such carpenter training is not available in Saskatoon but would have to be taken in either Prince Albert or Moose Jaw if he was to continue to live in Saskatchewan. Finally, he sees greater security for the child in Whitehorse, which is more remote and with fewer transportation options than Saskatoon, such that it would be more difficult for the child to be abducted. [33] The mother’s position is that any economic benefits to the child are too speculative and that the child’s needs could also be met in Saskatoon since she says that there is currently plenty of work for carpenters in Saskatoon. While there is no evidence presented of firm job offers in the Yukon, am satisfied, based upon the evidence of the father, that he has made the necessary inquiries and that his employment prospects in Whitehorse are good. am also satisfied that the increased contact with her extended family in the Yukon, including not only her paternal grandparents but also her maternal grandfather, who lives in Whitehorse, provides an increased social network that would be in the child’s best interest. (f) Disruption to the child of change in custody. [34] There will be no disruption to the child as the father has had interim custody since June 2006. (g) Disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [35] The mother testified that the child has half‑brother, the mother’s common law spouse, the maternal grandmother, an uncle, an aunt and other extended family members in Saskatoon, who the child could not have access to if she moves to Whitehorse. However, the evidence presented at trial was that the child had no contact with any of the mother’s family in Saskatoon since the mother left Saskatoon in June 2005 (except for the mother’s common law spouse and the half‑brother with whom the child lived while in Edmonton). No application for access to the child by any of the mother’s family, including the mother’s common law spouse, is found in the court records. [36] There is no question that there will be some disruption to the child. She is currently enrolled in kindergarten and daycare close to her father’s apartment in Saskatoon. However, her kindergarten teacher confirmed that the child copes well with changes in her environment. The father testified that he has investigated the school and daycare facilities close to his planned residence in Whitehorse (his mother’s home) and they appear to be appropriate. [37] Accordingly, it is my view that allowing the father to move with the child to the Yukon will not result in any greater disruption to the child than normally could be the case for any child who changes schools and homes yet stays in the same city. Best Interests of the Child [38] Section 8(a) of the Act confirms that am only to have regard for the best interests of the child and not the wishes of the parents. In this case, it would appear that both parents love this child and want the best for her. Based upon the evidence, it appears that, notwithstanding the difficulties between the parents, the child is happy and well adjusted. [39] The father, who is the custodial parent (based upon my finding in this judgment), feels that it is in the best interests of the child to move the child’s residence to Whitehorse. While there is no legal presumption in favour of the wishes of the custodial parent, the views of that parent are to carry significant weight provided that the reason for the move is not improperly motivated. [40] In the Gordon v. Goertz case at paragraph 48, McLachlin J. (as she then was) stated: 48 While legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on day‑to‑day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability. [41] It is my opinion that there is no evidence of an improper motive on the father’s part and that his plans regarding the move to Whitehorse are well thought out. The father will have increased opportunity for employment and education which in the long run will have economic benefits to the child as well. The father’s family in Whitehorse will provide support for the child which is also in the child’s best interests. The father has made arrangements for he and the child to live with the father’s mother in Whitehorse until such time as the father can find his own accommodations. The living arrangements include separate room for the child and would appear to be appropriate. This is not situation such as that found in the case of Rosenau v. Rosenau, supra, where the Court found that it would not be in the child’s best interest to approve move because the petitioner’s plan was too vague or speculative. [42] It is therefore my opinion that it is in the best interests of the child to approve the father’s plan to move with the child to Whitehorse. While there are negative implications for the mother’s access arising from this decision, they cannot be avoided if it is in the child’s best interest to move. [43] If, as she testified at trial, the mother has realized that there is no merit in her accusations about the father’s abuse of the child and if she can demonstrate an ability to abide by court orders, then hopefully she can regain the trust of the father such that there will come time when the child may even spend blocks of time with the mother in Saskatchewan. 3. What access to the child should be granted to the mother? [44] Counsel for the mother indicated that the mother was not objecting to the current access arrangements. The current access arrangements provide for telephone access twice per week at times to be established by Family Justice Services and personal access pursuant to the terms of supervised access program contract. The mother’s counsel also indicated that the mother understands she has to demonstrate her commitment to abide by court orders before supervision is no longer required. She would like to move towards increased personal access and obtain access for her second child, K., and her common law partner, P.R. [45] The father’s counsel indicated that the father would support continuation of the current access arrangement. The father does not intend to move to Whitehorse until the end of the school term, which would be approximately June 28, 2007. Accordingly, the existing access arrangements can continue until that date. Following the move to Whitehorse, the father would support continued telephone access twice weekly and would facilitate internet access by the purchase and installation of webcam. Personal access in Whitehorse is also agreeable to the father provided that there is an appropriate supervisor such as the witness, Ms. J. Laird, and the availability of security guard. [46] The current custody and access worker, Ms. G. Martens, testified that the access arrangements which have been in place since July 2006 have worked well and have been positive experience for the child. The mother’s conduct has also been appropriate. [47] I am satisfied that it is in the best interests of the child to continue the mother’s existing access arrangements with the child until the child moves with the father to Whitehorse at the end of June 2007, with the following changes: (a) The mother be allowed to bring the child K. with her to the supervised personal visit if she wishes to do so and if, in the opinion of the supervisor of the access program, it does not disrupt or interfere with the normal access visits; and (b) The mother’s common law partner, P.R., may attend for up to one‑half hour of the supervised visit if appropriate security arrangements can be made for his attendance and if, in the opinion of the supervisor of the access program, his attendances at such visits remain in the best interests of the child. [48] Upon the move to Whitehorse, the following access arrangements shall apply: (a) telephone access twice per week with supervision by the father or his designate is appropriate. The father has agreed to arrange for webcam to be purchased and installed in his residence. If the mother wishes, webcam internet access can be substituted for all or any of the scheduled telephone access. (b) The mother shall be entitled to supervised personal access to the child at such times that can be agreed upon, but failing agreement, once month, upon providing at least 30 days’ prior written notice of the time for exercise of such access and providing professional supervisor agreeable to the parties can be arranged. The father testified that Ms. J. Laird would be an appropriate supervisor. In cross‑examination, the father indicated he envisaged similar schedule to that currently in place which required security in addition to the access supervisor. However, the original plan proposed by the father for access in Whitehorse did not include any provision for further security other than the access supervisor. The father also indicated that, because of the remoteness and lack of travel options, one of the benefits of approving the move to Whitehorse would be increased security from abduction. Accordingly, am satisfied that supervised access in the Yukon will not require the security arrangements currently in place in Saskatoon. The mother should recognize, however, that any failure to comply with the terms of the access order could result in additional restrictions or even the loss of access visits. Due to the distance and cost of these access visits, they should be for longer blocks of time than is the current arrangement. Failing agreement by the parties, access should be for up to two hours per day for at least three‑day period. (c) Beginning July 1, 2008, and assuming the mother has abided by the terms of the supervised access previously set forth, access may include overnight access at the maternal grandfather’s residence provided that the maternal grandfather or some third party agreeable to the mother and the father will supervise such access pursuant to an access agreement such as that currently in place. (d) It is my hope that by July 1, 2009, the mother has been able to demonstrate level of compliance with the terms of access orders that will provide agreement between the parties that will allow access visits to take place in Saskatchewan. [49] There will be the following orders: (a) The father will have sole custody of the child. Except in emergencies, he will, however, provide the mother with health and educational information and discuss major health and education decisions with her before he makes final decision regarding the child’s best interests in this regard. The subsequent notification of his decision should be by email or letter. The mother shall be entitled to request medical records and education records directly from the source if they are not provided to her by the father. (b) The father shall be permitted to relocate with the child to Whitehorse, Yukon. Pursuant to s. 5(b) of the Act, the father shall provide written notice to the mother as to the child’s residence, including phone number. The father shall also provide 30 days’ notice to the mother of any intention to change this residence. The mother shall not remove the child from the Yukon save by written agreement of the parties or further court order. (c) The mother shall have access to the child at all times that can be agreed upon between the parties but such access shall include at minimum: (i) telephone access to the child twice per week, with such telephone access to be supervised by the father or his designate if the father wishes to continue telephone supervision; (ii) internet webcam access as an alternative, at the mother’s option, to the aforesaid telephone access immediately upon the father’s relocation with the child to Whitehorse; (iii) until the child’s relocation to Whitehorse, supervised personal access to the child shall be in accordance with the terms of the interim order of Justice M‑E. Wright dated March 5, 2007; (iv) following the child’s relocation to Whitehorse, the mother shall have supervised personal access to the child for three days per month for up to two hours per day. The supervisor of the personal access shall be Ms. J. Laird or any other supervisor agreed to by the father and the mother. The mother shall execute supervision contract allowing for search and restraint of the mother in the same manner as the contract between the mother and Flaman Investigation and Security Agency Ltd. concerning the existing Saskatoon access arrangements. The mother shall pay for any costs of the supervisor for such access. As of July 1, 2008, the mother’s access may include overnight access at the maternal grandfather’s residence or such other residence as may be agreed upon, provided the maternal grandfather or some other third party agreeable to the parties agrees to provide supervision of such access similar to the terms of the access agreement currently in place; (v) prior to attending for supervised access, the mother (and P.R. if he attends the access visit with her) must surrender to the registrar of the Court of Queen’s Bench any passports that are registered in their name from any country, which passports are to be held by the registrar of the Court until the access visit is complete. (vi) following July 1, 2009, either party may apply for review of the access provisions of this order. [50] The father shall have the costs of the trial on party and party basis. J. N.G. Gabrielson
The respondent father applied by way of notice of motion to vary a custody judgment that provided for joint custody of the child with shared parenting according to a specified schedule. The grounds for the application were that the mother had failed to abide by the terms of the original judgment and had refused to provide the father with any information as to the location of herself and the child since the date of that judgment. The mother had left Saskatoon, taking the child with her and, subsequent to police involvement and several Court orders to assist in locating the child, was arrested on Canada-wide warrant in Edmonton, Alberta and charged pursuant to ss. 281(1) and 283 of the Criminal Code of Canada with child abduction and contravention of custody order. The applicant submitted that the mother had placed the child at risk of harm and accordingly it was in the best interests of the child that the father be granted sole custody. The applicant also requested an order providing only supervised access to the child by the mother. The father filed a further application seeking an order allowing him to relocate the child to Whitehorse, Yukon, for residential purposes. The mother opposed the father's application for relocation, and prayed that she be granted less restrictive access to the child. The issues were as follows. 1) Should the father be granted sole custody of the child? 2) Should the father be allowed to relocate with the child to Whitehorse, Yukon? 3) What access to the child should be granted to the mother? HELD: Application allowed. The father shall have the costs of the trial on party and party basis. 1) The starting point for the Court's review is whether the father has demonstrated material change in the circumstances affecting the child. The Court is satisfied that there has been a material change in the circumstances that existed at the time of the original custody judgment when it was thought that the cooperation of the parties necessary for joint custody was possible. As the mother has demonstrated it was not, review of the order to determine whether change in custody or access order is in the best interests of the child, having regard to all of the circumstances of this case. Based on the original findings and the evidence at trial that the father has cared well for the child, as well as the mother's conduct in attempting to avoid shared parenting, the Court is satisfied that it is in the child's best interests to grant sole custody to the father. 2) The evidence at trial confirmed the seven points that the father outlined in support of the proposed relocation to Whitehorse. In reviewing each of seven factors set out in the case law and considering the best interests of the child, the Court approves the father's plan to relocate to Whitehorse. 3) It is in the child's best interests to continue the mother's existing access arrangements with the child until the child moves with the father to Yukon, at which time the new access arrangements set out in this decision will apply. Detailed orders are issued accordingly.