QUEEN’S BENCH FOR SASKATCHEWAN FAMILY LAW DIVISION Citation: 2006 SKQB 218 Date: 20060508 Docket: F.L.D. No. 329/04 Judicial Centre: Battleford BETWEEN: SHAUNA SHARON PETERSEN PETITIONER (RESPONDENT) and ROCKY DEAN ELPHINSTONE RESPONDENT (APPLICANT) Counsel: James A. Morrison for the applicant (Rocky) Monte J. Sheppard for the respondent (Shauna) JUDGMENT KRUEGER J. May 8, 2006 [1] Rocky Dean Elphinstone (Rocky) applies to vary the consent joint custody order granted on October 14, 2004. His application was prompted by the relocation of Shauna Sharon Petersen (Shauna) on March 3, 2006, with one of the couple’s two children, Tyson Elphinstone (Tyson), from the Kindersley district in northwestern Saskatchewan to the Archerwill district in northeastern Saskatchewan. viva voce hearing was directed. BACKGROUND INFORMATION [2] According to Rocky, he and Shauna started living together on an acreage five miles south of Flaxcombe, Saskatchewan, on July 12, 1994. Two children were born of that relationship: Kailey Elphinstone, born April 11, 1995 (11 years old); Tyson Elphinstone born August 25, 1999 (6 years old). The parties separated on May 12, 2004, when Shauna left the family home with the two children. [3] From May 12, 2004, until the end of June, 2004, Shauna and the children lived with friend, Katherine Grimsdale, in trailer in the Town of Kindersley. For the summer months they moved in with Shauna’s parents at Marean Lake in northeastern Saskatchewan. In August, 2004, Shauna obtained low-income housing in Kindersley where the family resided until July, 2005. Shauna, her fiancé, Lee Etsell, with whom she was then living, and the children then moved to Coleville. [4] Through their respective counsel, Rocky and Shauna had issued the consent order of October 14, 2004. It provides for: (a) Joint custody of the children with their primary residence being the home of Shauna at Kindersley; (b) reasonable access to Rocky, including his four days off every second week; (c) child support in the amount of $702.00 per month based on an annual income of $53,600.00 by Rocky, commencing on October 1, 2004; (d) spousal support for Shauna in the sum of $300.00 per month to run from October 1, 2004, until September 1, 2006; and (e) the delivery by Rocky to Shauna of specific furniture and furnishings on or before November 4, 2004. [5] The terms of the consent order have been more honoured in their breach than in compliance. Except for one payment of $1,002.00 on October 4, 2004, another on December 17, 2004, in the amount of $2,004.00 and grocery voucher (gift certificate) in the sum of $250.00, no spousal or child support has been paid. Rocky acknowledges his failure to make regular payments of spousal and child support as an error in judgment, but has not been moved to rectify the error. The furniture and furnishings promised have not been delivered. [6] After the separation Rocky remained on the acreage south of Flaxcombe. The home is an older four-bedroom house. understand bedrooms for Kailey and Tyson are located in the basement. Shauna started having difficulty managing Kailey and by agreement Kailey went to live with Rocky and his wife, Tara Elphinstone, in mid October, 2005. Rocky enrolled Kailey in school at Marengo where she continues to attend classes by bus. [7] From the outset access was problem for Rocky. Initially he would see the children every second weekend for three or four months in row, then would not have any access for the next month. There were always circumstances that created problems. By the summer of 2005 only Kailey was attending at Rocky’s home for access visits. After Kailey went to live with Rocky, access for Tyson became even less frequent. Between mid October, 2005, and the end of February, 2006, Rocky had just three access visits with Tyson. [8] After Kailey moved to her father’s home Shauna’s access to her was primarily by telephone. Those conversations occurred on weekly basis and sometimes included conversations between Tyson and Kailey. Personal access visits were infrequent. [9] On March 3, 2006, Shauna and Tyson moved from Coleville to the Archerwill district. Lee Etsell was already working for Walker’s Seeds at Tisdale, Saskatchewan, and the plan was for Shauna, Lee and Tyson to live with Shauna’s parents at their Marean Lake cabin until they could permanently settle into home of their own. The move had been planned in advance and when Rocky learned of Shauna’s plan to relocate, he contacted her to discuss the future. [10] There is some conflict as to what was discussed at the meeting between the parties. Shauna insists that Rocky had no objection to her move provided that she agree to contact the maintenance enforcement office and withdraw her claim for child and spousal support. That would allow Rocky to have his driving privileges reinstated. When she declined to do so, Rocky stated that she would be sorry. [11] Rocky claims that the focus of the discussion was access and that he did not initially raise the matter of Shauna’s planned move. When Shauna did not mention moving, Rocky inquired about the rumour he had heard. Shauna indicated that there was no certainty about moving, but if she moved they could discuss different access options. The following day Rocky was advised that Shauna was moving and there would be no access agreement. According to Rocky, he was told by Shauna, “You have your family, we have ours”. [12] Marean Lake is 15 miles from Archerwill. Shauna’s parents own and live in two-level three-bedroom cabin with two bathrooms and deck on two sides. Tyson has his own bedroom on the second level. Shauna plans to purchase, with the assistance of her parents, an acreage in the Archerwill district in the near future. She and Lee Etsell plan to marry later this year. [13] Tyson rides school bus to Archerwill where he attends Lynn Prosko’s grade one and two class. He is in grade one with two other boys. Ms. Prosko also teaches kindergarten part time and Tyson participates in some of those classes. Tyson has some motor co-ordination and information processing deficiencies. He is easily distracted and has difficulty concentrating. No medical evidence was provided, but Tyson may also have chronic ear infection. He requires special education resource help, but is good natured and readily adjusts to different school and environmental situations. [14] Kailey has settled in well with Rocky and his wife, Tara. She was variously described at the hearing as mature, articulate, bright and able to assert her views. She misses her brother and wishes that they could live together. Neither parent suggested changing Kailey’s primary residence from Rocky’s home. At present there exists de facto split custody situation. THE ISSUE [15] The sole issue on this variation application is determining the primary residence of Tyson. That entails deciding what is in his best interests. [16] The law relating to the mobility rights of divorced parents was clearly defined in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27 (S.C.C.). Before custodial/primary parent is permitted to relocate child where there is an existing custody order or agreement, there must be material change in circumstances affecting the child since the making of that order or agreement. Once the threshold test has been met, the court embarks upon fresh inquiry into what is in the best interests of the child in the new circumstances. Ultimately the focus is the best interests of the child under either The Children’s Law Act, 1997, S.S. 1997, c. C-8.2, or the Divorce Act, R.S.C. 1985, c. (2nd Supp.) [17] change from one community to another that involves changing schools, living arrangements and new associations is change in circumstances. The proposed relocation of Tyson to the Archerwill district, community five and half to six hours away from Flaxcombe, also requires changing the access arrangements. Those are not changes that were contemplated by the consent order of October 14, 2004. They are changes in circumstances that are material. The original order, however, was made pursuant to The Children’s Law Act, 1997, and not the Divorce Act. material change within the meaning of the Divorce Act may not be threshold requirement. See Johnston v. Kurz, 2004 SKQB 362 (CanLII). In any event there is ample reason to embark upon an inquiry as to Tyson’s best interests resulting from the change in circumstances. [18] In every case, determining what is in the best interests of the child comes down to weighing the benefits of retaining close contact with one parent against the detriment that results from losing close contact with the other parent and the community in which the child has lived. [19] In deciding what is in the best interests of Tyson, consider the following to be relevant factors: 1. The existing split custody arrangement and the relationship of each child with the other. 2. The existing living arrangements and the time spent by each child with each parent. 3. The desirability of maximizing the contact of each child with both parents. 4. The views of Kailey as expressed through the expert. 5. The disruption for Tyson resulting if removed from the Kindersley area. 6. The disruption to Tyson if his custody or primary residence is changed. [20] Both parents, am satisfied, dearly love their children. Shauna has developed strong bond with Tyson and Rocky has very close relationship with Kailey. That does not make one better parent than the other. The existing circumstances do, however, hinder the ability of the children to maintain close relationship with each other and with both parents. [21] After Kailey went to live with Rocky, neither parent did much to facilitate the access of either child. Although only short distance apart, neither Kailey nor Tyson saw his/her non-custodial parent and sibling on regular basis. Even telephone access has been sporadic. Shauna admits that she has call display on her telephone and does not always return phone calls from Rocky’s phone number. [22] The existing living arrangements have been far from satisfactory. While neither parent is prepared to accept responsibility for the lack of time spent by each child with the other, both parents have established homes that have accommodated only one child. Since directing the hearing and ordering, on an interim basis, access every second weekend involving both children, more time is being spent by each child with the other parent. [23] In the past Kailey has initiated telephone contact with Shauna to arrange access visits. Shauna has insisted that any access times be approved by Rocky. Access has not often occurred. Access to Tyson, although seldom, when exercised is mainly with Kailey and Tara. Rocky’s acreage comes complete with horses, dogs and cats and Tyson always enjoys himself on the access visits to his father’s acreage. [24] Shauna, am satisfied, had no intention of informing Rocky of her planned move to the Archerwill district. When they met in February, 2006, the move, although imminent, was not mentioned until Rocky raised the matter. do not believe that Rocky raised the moving issue in order to discuss access. He had been permitted access to Tyson on only three occasions in the past four months, yet had not sought any redress. Rocky was more interested in resolving his financial obligations to Shauna and in obtaining her undertaking to contact the maintenance enforcement office than in discussing access. In the future it is imperative that more and better access be granted to both Kailey and Tyson. [25] On March 28, 2006, Kailey was interviewed by Richard Kuckartz, youth and family counsellor with over 20 years experience in the field. He was not requested to and did not conduct home study. Perhaps because he was not able to also interview Tyson, Mr. Kuckartz limited his testimony to reiterating what had been related to him during his interview with Kailey. She feels that her mother lied to her about Tyson’s availability to talk to her on the telephone. The conclusion that Shauna lied may have been influenced by Rocky’s reading to Kailey portions of an affidavit sworn by Shauna. Three wishes expressed by Kailey were: (a) That there be more happiness; (b) that her brother, Tyson, live with her; and (c) that her mother not act like child. At the time Mr. Kuckartz interviewed Kailey she was already aware that Shauna and Tyson had moved to the Archerwill district and that court hearing was pending. Understandably, Kailey viewed the circumstances from the perspective of her father. [26] Tyson has personality that allows him to adjust easily to changes in circumstances and surroundings. Tara Elphinstone indicated that it takes Tyson awhile to adjust, but that he warms to everyone in time. Lynn Prosko, his present teacher, stated that by the end of the first week in his new school Tyson was hugging and kissing her before going home each night. He has been well received and accepted by everyone in the classroom. Sharon Petersen, Tyson’s maternal grandmother, saw no difference in him when he moved from one home to another. There has not been any disruption to Tyson in moving from Coleville to the Archerwill district. There would not likely be any disruption in his moving to Flaxcombe. Disruption to Tyson as result of being moved away from Kindersley is not determining factor. [27] Placing Tyson in the home of Rocky as his primary residence because of the relocation of Shauna to the Archerwill district must be considered in the context of the impact that such change would have on him. Shauna has always been Tyson’s primary caregiver. As described by Madam Justice L’Heureux-Dubé in Gordon, supra, she is the psychological parent. The strong bonding between Shauna and her son, Tyson, is stabilizing influence on his life. While Tyson readily adjusts to changes in circumstances and surroundings, the one constant in his life has been his mother. Tyson misses Kailey and speaks of her in positive way, but depends on his mother for support. Deference must be paid to Shauna’s views, including her choice of where to live and to work. POSITION OF EACH PARENT [28] It is the contention of Rocky that moving Tyson from Kindersley to Coleville, although unilateral, did not uproot him from his community, friends, school, activities and certainty. The move to the Archerwill district is to an entirely new and different community. He will be living with grandparents, attending school less able to provide for his special needs and away from his friends and family. That will be disruption to him. [29] The wishes of both Kailey and Tyson are that they live together. The home of Rocky, it was suggested, is stable and familiar to both children. That is where Tyson has spent considerable portion of his life. Lee Etsell, who is now permanent part of Shauna’s life, has criminal record of violence. Kailey was scared when living with him. In the final analysis, it was argued, it would be better if both children were in the same home and there was no suggestion that Kailey should be removed from Rocky’s home. [30] According to Shauna, it is in the best interests of Tyson to maintain the status quo. Shauna is the psychological parent and Tyson gets along well with Lee Etsell. There is no evidence of any violent behaviour or conduct by Lee Etsell toward any member of Shauna’s family. It will not, it was argued, be any more difficult to maximize access between the parents and the children at distance than it was when they all lived in the same community. The relocation may actually improve the access attitude of the parents. [31] Changing Tyson’s primary residence to the home of Rocky will not return him to the school he was previously attending. He would have to adjust once again to new school (Marengo), teacher and classmates. Tyson is no stranger to the Archerwill district or to the home of his maternal grandparents. He has, it was suggested, spent considerable time with them in the past. The evidence is that Tyson interacts mainly with Kailey when on access visits to Rocky’s home. [32] It is clear to me that the only viable options at this time are to either permit Shauna to relocate Tyson to the Archerwill district or to change the primary residence of Tyson by placing him in the home of Rocky. Shauna has foreclosed the option of returning to live in the Kindersley district. Too many irreversible events have taken place. In any event it would not necessarily serve Tyson’s best interests to order that Shauna be entitled to retain Tyson’s primary residence only by returning to the Kindersley district. [33] For Tyson there are negative consequences involved in moving to the Archerwill district. Access to his father and his sister become more problematic and travel arrangements more difficult. The move must, however, be considered in light of the circumstances that existed prior to the relocation. The parties had already adopted split custody arrangement without formalizing access or adjusting child support. They had not bothered to consult with their counsel or to advise counsel that they were no longer following the terms of the consent order of October 14, 2004. [34] There are also negative consequences involved in changing Tyson’s primary residence. He would be separated from his psychological parent. The special needs of Tyson require that he have the assistance and support of someone to whom he is closely bonded. Kailey, admittedly at age 11 years, is mature and adult-like. She is sibling who would be positive consequence if Tyson were living in the same home as her. She must not be asked to assume parenting role. [35] This has not been an easy decision to make, but permitting Shauna to relocate Tyson to the Archerwill district is, in my view, in his best interests. It is important that Tyson continue to live in the home of the parent whose constant presence he has become accustomed to No matter what the decision, it involves change of location for Tyson. Ultimately what is best for him must be the only consideration. Kailey has made her choice and her parents have accepted her decision. [36] Counsel for the parties have agreed upon an access arrangement pending the rendering of this judgment. The hearing has also established the payments that have been made and acknowledged on account of child and spousal support. Hopefully an agreement can be reached between the parents on these matters. If not, the issue of access, ongoing child support and arrears of support may be returned to me by contacting the Local Registrar and arranging for time. Outstanding family property issues may have to be dealt with at pre-trial conference. [37] There shall be an order as follows: 1. The parties shall continue to have joint custody of Kailey and Tyson. 2. The primary residence of Kailey shall be with the respondent, Rocky Dean Elphinstone. 3. The primary residence of Tyson shall be with the petitioner, Shauna Sharon Petersen. 4. The petitioner, Shauna Sharon Petersen, shall be permitted to relocate Tyson to the Archerwill district. 5. Access and child support issues may be returned to me for orders or directions at the request of either party. 6. Each parent shall keep the other provided with health, educational progress and extracurricular activity information relating to the child in that parent’s home. 7. There shall be no order as to costs. J. D. K. KRUEGER
The respondent applies to vary the consent joint custody order granted in October 2004. His application was prompted by the relocation of the petitioner with one of their two children, Tyson. The sole issue on this variation application is the determination of the primary residence of Tyson. HELD: 1) The petitioner wants to move Tyson 5.5 hours away from the respondent. This also requires a change in access arrangements. These are changes in circumstances that are material.  2) The petitioner has developed a strong bond with Tyson. The respondent has developed a close relationship with the parties' other child Kailey. After Kailey went to live with the respondent, neither parent did much to facilitate the access of either child. Before the petitioner and Tyson moved, although a short distance apart, neither Kailey nor Tyson saw his or her non-custodial parent and sibling on a regular basis. Even telephone access has been sporadic. Both parents have established homes that accommodate only one child. 3) The petitioner's move must be considered in light of the circumstances that existed before the petitioner's relocation. The parties had already adopted a split custody arrangement without formalizing access or adjusting child support. 4) Permitting the petitioner to relocate is in the best interests of Tyson. It is important that Tyson continue to live in the home of the parent whose constant presence he has become accustomed to. The petitioner has always been Tyson's primary caregiver. The petitioner is the psychological parent.