J. 2005 SKQB 211 Q.B. A.D. 2003 No. 337 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: CHARLENE MILLAR and HARLEY JASON STROUTS RESPONDENT P. J. Bitz, Q.C. for the petitioner J. B. Benesh for the respondent JUDGMENT MAHER J. May 6, 2005 INTRODUCTION [1] The petitioner (“Charlene”) and the respondent (“Harley”) are the parents of Harley Keeler Strouts-Millar (“Keeler”) born May 27, 2002. The parents separated in October of 2003. They agreed to an order of joint custody with Keeler primarily residing with Charlene. Charlene wishes to move with Keeler from Saskatoon to Edmonton and Harley is opposed to such a move. [2] The issues are as follows: 1. Is it in the best interests of Keeler to relocate from Saskatoon to Edmonton, Alberta with Charlene? 2. If it is in the best interests of Keeler to move to Edmonton, what is an appropriate access schedule for Harley to be with Keeler? [3] Charlene and Harley met in July of 2001. When Charlene was nineteen years old and Harley twenty-seven they commenced living together at Harley’s home in September of 2001. Charlene found out she was pregnant in October of 2001 and Keeler was born May 27, 2002. Harley and Charlene separated in mid-October of 2003. [4] On January 16, 2004, Wilson J. of this court, granted an interim order that provided Charlene and Harley would have joint custody of Keeler with Keeler to reside primarily with Charlene. The order provided that Harley was to have parenting time with Keeler as follows: Tuesday and Thursday each week 5:00 p.m. to 7:00 p.m.; Saturdays commencing at 10:00 a.m. until Sunday at 7:00 p.m.; The access to be at the home of Harley’s parents. This order established Harley’s income at $20,965 and Charlene’s income at $7,258. Harley was ordered to pay child support of $169 per month and 74% of any child care costs. [5] After the order the parties agreed that weekly access would be changed to Wednesdays and Fridays from 5:00 p.m. to 8:00 p.m. They also agreed in the latter part of 2004 that Harley would take Keeler to daycare each morning that Charlene worked and also pick him up because Charlene did not get home from work until 6:30 p.m. [6] Charlene has Monday as her day off and Keeler spends the day with her. When Harley takes Keeler to daycare, Tuesday through Friday each week, he picks Keeler up from Charlene’s between 7:15 and 7:30 a.m. and then picks Keeler up from daycare at approximately 5:15 p.m. On Tuesday and Thursday he keeps Keeler until 6:30 p.m. when he returns Keeler to Charlene’s apartment. On Wednesday and Friday he picks Keeler up at 5:15 and because this is his access day he then returns Keeler to Charlene’s at 8:00 p.m. Charlene’s Position: [7] Charlene is employed at the Bombay Store in Saskatoon at Midtown Plaza as an assistant manager. She works six days week, Tuesday to Sunday inclusive. She has no vehicle or driver’s licence so relies on the Saskatoon Transit Service for her transportation. [8] Charlene has some concerns about Harley’s ability to parent Keeler because in January of 2003 he had grand mal seizure. This seizure resulted in Harley being hospitalized for approximately one week. He is on medication but Charlene believes that he still gets seizures and therefore access should be at Harley’s parents’ residence. [9] On Charlene’s day off she devotes her full attention to Keeler. They play together, watch movies, prepare meals and do chores such as washing dishes. On her work days they are up at 7:00 a.m. If she is to drop Keeler off at daycare she must leave her home by 7:40 a.m. to take bus to day care. She then takes second bus from the daycare at 8:15 to work and usually returns home form work at about 6:30 p.m. This winter Harley agreed that he would pick Keeler up from Charlene’s apartment at between 7:15 and 7:30 a.m. and take him to daycare. Harley agreed to pick Keeler up from daycare Tuesday to Friday at about 5:15 and bring Keeler back to her apartment on Tuesdays and Thursdays at 6:30 p.m. and on Wednesdays and Fridays at 8:00 p.m. [10] Charlene is concerned about furthering her education. She has her grade twelve and when she met Harley she had taken year off from further studies. She has looked at taking hair dressing courses, psychology, and interior design. However, while she was working at company called Party World in 2003 she had the opportunity to do some accounting and found it to be challenging. Charlene has looked at obtaining further education in the accounting field. She reviewed the ten month program at the Saskatoon Business College. In her opinion the program was not worth the money. Her high school marks were not high enough for her to gain admission to the U. of S. She checked out Saskatchewan Institute of Applied Arts and Sciences programs. They offer business administration program but it is at Moose Jaw, Saskatchewan. Charlene is not prepared to relocate to Moose Jaw since she has no family or friends in that city. [11] Charlene next checked on the internet as to programs in accounting that were available in Edmonton because she had cousin who had taken accounting there. She also had further interest in moving to Edmonton as in the summer of 2004, her mother, step-father plus siblings had moved from Saskatoon to White Court, Alberta. [12] Charlene inquired about the accounting programs at Grant MacEwan College and arranged to travel to Edmonton in October of 2004. She found out there were programs for mature admissions which provided flexible scheduling and were, in her view, more affordable than the accounting programs offered in Saskatoon. Grant MacEwan College offers two year accounting program starting either in September of 2005 or January of 2006. She obtained package of materials from the Northern Alberta Institute of Technology which offers two year accounting program. On her visit to Edmonton she did not have time to go to the NAIT campus. [14] Charlene did some checking in Edmonton on apartments and found that two bedroom apartments range from $450 to $700 per month depending on where you live. Her current rent for two bedroom apartment is $500 per month. She said there appeared to be daycare on every corner near Grant MacEwan College. However, she made no direct inquiries because she did not know if she would be able to move or not. [15] Charlene said that if she was allowed to move to Edmonton, Harley could have access one weekend per month plus four, seven-day week visits per year or three, ten-day visits per year. She would arrange for access exchange to occur at Lloydminster, Saskatchewan. [16] She has also inquired of Bombay, her employer, about transferring her employment from Saskatoon to Edmonton. She was told that she couldn’t transfer in management position. However, if she was looking for part-time position in Edmonton it would appear to be no problem, although there were no current vacancies. Her plan is that her sister, Melissa, would move from White Court, Alberta to live with them in Edmonton. Harley’s Position: [17] Harley is thirty years of age and has been employed at several companies in the Saskatoon area primarily in the area of shipping and receiving. He is currently employed in that capacity with Ramboc Enterprises. His income for 2004 was $21,873.36 and he estimates his 2005 income will be $24,000. He currently rents residence at 122 Ross Crescent in Saskatoon. This residence is three bedroom home which he shares with roommate. There is an extra bedroom which he has set up and furnished for Keeler. [18] Harley has had seizures since he was eight years of age. The seizures are controlled by medication which he takes regularly. He has his blood monitored monthly. The seizure that occurred in January, 2003, was the only time he was hospitalized for seizures. This occurred at the time he lost his job after he had been employed for ten years with Acklands-Grainger and was under lot of stress. He has driver’s licence and there is no indication of any restrictions on his licence. The only time he has symptoms of seizures is when he is in bed generally in the early morning. [19] Harley has significant family network in Saskatoon. His parents, Rick and Pam Strouts, live in the City. They have established bedroom in their home so that Keeler has his own room when he stays there on weekends. Harley has brother and sister, grandparents, numerous aunts, uncles, nieces, nephews, and cousins in the Saskatoon area. His family and extended family get together for special occasions such as Christmas, Easter and Thanksgiving. Keeler goes to these family events plus the occasional family wedding. [20] Harley has cared for Keeler since Keeler was an infant. When Harley lost his job in January of 2003, he cared for Keeler on full time basis after Charlene returned to work to support the family while he was unemployed. [21] Harley is involved with Keeler almost daily. This winter on Tuesdays through to Fridays when Charlene was going to work he would go to Charlene’s apartment to pick up Keeler each morning at around 7:15. If Keeler wasn’t ready he would help dress him, change his diaper, put his jacket and boots on and then take Keeler to daycare by around 7:30 a.m. When he finished work at 5:00 p.m. he would go to the daycare and pick Keeler up. On Tuesdays and Thursdays he usually took Keeler to his parents or the rink, returning Keeler to Charlene’s by 6:30 p.m. On Wednesdays and Fridays he would pick Keeler up at 5:15, on these days Keeler would have supper with him at his parents’ house. They would play trains, blocks, watch videos until he returned Keeler to Charlene’s at 8:00 p.m. [22] Charlene first told him about her plans to move with Keeler to Edmonton in August of 2004, shortly after her mother and step-father had moved to White Court, Alberta. She told him she wanted to go to school in Edmonton and help with her father’s business at White Court, Alberta. Harley said he was not pleased with the idea as he might only see Keeler once month when he now sees Keeler just about every day. [23] Harley says that he likes the current arrangement and the only change would be if he could have Keeler at his house instead of always having to take him to his parents’. If Charlene would take her courses in Saskatoon at an evening program he would be happy to take care of Keeler. Charlene could take accounting classes in Saskatoon through the SIAST distance education program at Kelsey Campus in Saskatoon. [24] Harley doesn’t have to be asked twice to look after Keeler. Harley took time off work in November and December to take Keeler to the doctor. On November when Keeler was sick, Charlene called him and he took the day off work to care for Keeler. [25] Harley feels that he and Charlene communicate reasonably well on issues surrounding Keeler. On one weekend month Charlene now has Keeler even though the interim order says that he is to have Keeler every weekend. [26] Harley has made no inquiries about the possibility of finding employment for himself in Edmonton. He is reluctant to do that because he has job and family in Saskatoon. His position is that he would like the current arrangement to remain in place and would be happy to see Keeler every day. [27] The Children’s Law Act, 1997, S.S. 1997, c. C-8.2, provides as follows: Custody or access application 6(1) Notwithstanding sections to 5, on the application of parent or other person having, in the opinion of the court, sufficient interest, 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. (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. 1. Is it in the best interest of Keeler to relocate from Saskatoon to Edmonton with Charlene? [28] At the commencement of the trial the parties agreed that there should be an order for joint custody and provided Charlene remained in Saskatoon, Keeler’s primary residence was to be with her. The issue that am to determine is whether it is in Keeler’s best interest to relocate with Charlene to Edmonton, Alberta. [29] This is the first determination of residence of Keeler given that the order of June 16, 2004, was an interim order. In my considerations on the proposed relocation of Keeler to Edmonton am mindful of the comments of McLachlin J. (as she then was) in Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] S.C.R. 27 where she said the following at para. 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. [30] McLachlin J. also commented on the best interest test para. 20: 20 The best interests of the child test has been characterized as "indeterminate" and "more useful as legal aspiration than as legal analysis": per Abella J.A. in MacGyver v. Richards (1995), 1995 CanLII 8886 (ON CA), 11 R.F.L. (4th) 432 (Ont. C.A.), at p. 443. Nevertheless, it stands as an eloquent expression of Parliament's view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake. The multitude of factors that may impinge on the child's best interest make measure of indeterminacy inevitable. more precise test would risk sacrificing the child's best interests to expediency and certainty. Moreover, Parliament has offered assistance by providing two specific directions one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents. [31] Madam Justice L’Heureux-Dube in Gordon v. Goertz, (supra) considered the significance of the primary caregiver and psychological parent when the court is determining the “best interests” of child: The assessment of the child's best interests also involves consideration of the particular role and emotional bonding the child enjoys with his or her primary caregiver. The importance of preserving the child's relationship with his or her psychological parent has long been recognized by this Court on number of occasions (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] S.C.R. 165, at p. 202; Racine v. Woods, supra, at p. 188; King v. Low, 1985 CanLII 59 (SCC), [1985] S.C.R. 87, at p. 101). There is growing body of evidence that this relationship may well be the most determinative factor on the child's long-term welfare. As mentioned in Young, supra, at p. 66, the vital link between continuity in the emotional bonding of the child with his or her psychological parent and the best interest of the child finds ample support in the literature: Goldstein, Freud and Solnit's Beyond the Best Interests of the Child, supra, while perhaps lacking in empirical data, remains an influential analysis of the psychological needs of children following divorce. The authors emphasize, among other factors, the importance of continuity in the child's relationships and conclude that the major focus of custody decisions should be to preserve and protect the relationship between the child and his or her psychological parent. [32] Laskin J.A. in Young v. Young, 2003 CanLII 3320 (ON CA), [2003] O.J. No. 67 when considering the test on relocation application said the following at para. 17: The court must consider and balance all the benefits and detriments of the proposed relocation. What is required is “full an sensitive inquiry” into the best interests of the child. Laskin J.A. further at para. 18 held that this inquiry applied where the parents have joint custody. [33] He then commented on the application of Gordon v. Goertz (supra) on an existing parenting arrangement at para. [32] The application judge's misapprehension of the existing parenting arrangement has significant consequences for two of the other considerations listed in Gordon v. Goertz at p. 61 S.C.R., p. 342 D.L.R.: "the existing custody arrangement and the relationship between the child and the custodial parent" and "the desirability of maximizing contact between the child and both [page120] parents". The record discloses that Mr. Young is good father, and with the help of his parents, has admirably carried out his responsibilities as custodial parent. One effect of granting Ms. Young permission to move to Cornwall with the children is to remove Mr. Young as custodial parent, and thus to undermine the co-parenting arrangement reflected in the minutes of settlement. In practice, Mr. Young will become an access parent and the children will no longer benefit from his co-parenting. This consideration should have been factored into the assessment of whether the move to Cornwall was in the children's best interests. [34] There have been several recent decisions of this court involving the relocation of children. It is helpful to review the factual background in these decisions. In Rosenau v. Rosenau, 2004 SKQB 275 (CanLII) Wright, M-E J. of this court determined that the petitioner/mother should not relocate to Ontario with five year old because her family connections in Ontario were not frequent, she did not identify the community in Ontario she would be moving to and had made no inquiries as to employment or educational opportunities in Ontario. [35] Sandomirsky J. in H.S. v. C.S., 2004 SKQB 492 (CanLII) reviewed in detail the steps the petitioner/mother had taken in anticipation of relocation with her three children from Midale, Saskatchewan to Medicine Hat, Alberta for the purpose of enrolling in nursing program He determined that the petitioner’s research and knowledge of the nursing program was sketchy and vague, she did not provide evidence on daycare facilities nor potential arrangements for childcare. Sandomirsky J. determined that the court was concerned about the vagueness, uncertainty, and speculative nature of the proposed move to Medicine Hat. He refused the petitioner’s application to relocate the children from Midale, Saskatchewan to Medicine Hat, Alberta. [36] more recent decision of Smith, R.S. J. in Rask v. Rask, 2005 SKQB 159 (CanLII) dealt with an application by petitioner/father to stop the relocation of the two children ages and with their mother from Saskatoon to Calinte, Nevada. Calinte, Nevada is community of about 800 people some two hours from Las Vegas, Nevada. Smith, R.S. J. held that the children’s psychological parent and their psychological home was with the mother who wished to relocate. He held that the father was not involved in the day-to-day routine of the children. He further concluded that the mother had definite employment arrangement and had taken steps to familiarize herself with the town as well as potential home for herself and the children. He allowed the mother to relocate with the children. [37] The Saskatchewan Court of Appeal held in Delaire v. Delaire, 2002 SKCA 71 (CanLII) that parent’s reason for relocating is only relevant in the exceptional case where it impacts on that parent’s ability to meet the needs of the child. [38] The Children’s Law Act s.6(5) mandates that child should have as much contact with each parent as is consistent with the best interests of the child. The common theme in all three of these recent decisions of this court mandates an inquiry as to what arrangements would be in place for the child in the event relocation was allowed and also what is the psychological relationship between each of the parents and the child. [39] It is clear that Charlene has made, as what can best be described as cursory inquiries, at Grant MacEwan and basically received only informational material from the Northern Alberta Institute of Technology regarding taking of an accounting/business program in Edmonton. She has not made any inquiries as to daycare arrangements that might be available other than to say that at Grant MacEwan, “there is daycare on every corner”. Her plan however would be to go to NAIT. Her only involvement has been to review the printed materials that she has received. She has made no inquiries about daycare at NAIT or in the immediate vicinity. She has made no inquiries about available rental accommodations in the area of the NAIT campus. She has made some inquiries about working part-time with her current employer at the Bombay Store in Edmonton. She has not indicated as to how she would integrate attending school, working part-time, daycare, and how she would handle meaningful relationship with Keeler while involved in all of these activities. She, as well has dismissed out of hand taking business/accounting classes offered by SIAST Distance Learning Program which are available in Saskatoon. [40] On the matter of the psychological bond of Keeler to his parents, given the involvement of Harley with Keeler particularly this past winter, six out of seven days week, am satisfied that there is significant bond between Keeler and Harley which would be lost if Keeler was allowed to relocate. Keeler, as well would lose contact with his extended family in Saskatoon on Harley’s side. Keeler would have no extended family in Edmonton as Charlene’s parents live and work in White Court, Alberta which is approximately two hours from Edmonton. [41] Charlene’s plans for Keeler’s care in Edmonton, if she was allowed to relocate, are very vague, if she went to school and worked part time in Edmonton, Keeler would be in day care for extended periods of time. Keeler has had very stable arrangement in Saskatoon which provides significant and almost daily contact with both parents, relocation would cause Keeler to lose the bond he now has with Harley. Harley would become an access parent and Keeler would no longer benefit from Harley’s co-parenting. [42] Based on the loss of Harley as an active co-parent coupled with Charlene’s vague and uncertain plans for Keeler’s care in Edmonton I find it is not in the best interest of Keeler that he be allowed to relocate to Edmonton with Charlene. 2. If it is in the best interests of Keeler to move to Edmonton, what is an appropriate access schedule for Harley to be with Keeler? [43] It is not necessary for me to deal with this as have declined to allow the relocation of Keeler to Edmonton. Harley’s Current Access: [44] At the conclusion of the trial amended the interim order which required access by Harley with Keeler to be at his parents’ home. My reasons for so doing were was satisfied on the evidence that the risk of Harley having further grand mal seizure has been minimized by the medications he takes and his monthly blood analysis. The petitioner obviously has confidence in Harley’s health given the fact that Harley has been transporting Keeler in his car six days week over the last number of months without incident. Harley, as well, has not had further significant event since January of 2003, and he has roommate who also resides at that home. Therefore concluded that supervised access is no longer required. Child Support: [45] The parties have filed their respective income information and will make the requisite child support order based on that evidence. 1. There will be an order that Charlene Millar and Harley Jason Strouts shall have joint custody of the child, Harley Keeler Strouts-Millar, born May 27, 2002; 2. That Keeler shall remain in the Province of Saskatchewan unless the parties agree in writing to temporary absence from the Province of Saskatchewan or by order of the court; 3. That Keeler’s primary residence shall be with the petitioner, Charlene, so long as she remains in the City of Saskatoon, in the Province of Saskatchewan. If she chooses to relocate out of the City of Saskatoon, Keeler’s primary residence will be with Harley in the City of Saskatoon; 4. Harley shall have access to Keeler on Wednesdays and Fridays from 5:00 p.m. to 8:00 p.m. as well as every weekend from Saturday at 10:00 a.m. to Sunday at 7:00 p.m. and such other times as the parties may agree or the court may allow; 5. For the purpose of child support the respondent’s annual income is $24,000 per annum, he shall pay child support pursuant to s. of the Federal Child Support Guidelines, [Divorce Act Regulations, SOR/97-175] in the amount of $202, commencing on the 1st day of June, 2005, and continuing on the 1st day of each and every month thereafter until further order; 6. The petitioner’s income is $12,103, therefore the respondent’s proportional share of child care expenses shall be 66.5%. The respondent shall pay his share of childcare expenses within seven days of being provided with the receipt from the petitioner. Leave is granted to either party to return the matter of child care back to the court for further determination if necessary on the issue of tax deductibility of such payments. 7. Costs The matter of costs was not spoken to by either party. The matter of costs may be brought back before me on seven days notice.
The parties separated in October 2003. They have a child born May 27, 2002. The parties have agreed to an order of joint custody with the child residing primarily with the petitioner. The petitioner wishes to move from Saskatoon to Edmonton. HELD: Based on the loss of the respondent as an active co-parent and the petitioner's vague and uncertain plans for the child's care in Edmonton, it is not in the best interests of the child that he be allowed to relocate to Edmonton with the petitioner.