J. 2003 SKQB 550 D.I.V. No. 02885 (16/2001) J.C. S.C. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: JACQUELINE DIANA VOLD and DOUGLAS ROY VOLD B. Lynn Galey for the petitioner Douglas J. Heinricks for respondent JUDGMENT McLELLAN J. December 22, 2003 [1] The respondent and the petitioner were married on June 19, 1999 and separated in January 2000. [2] The petitioner had two children from two prior relationships. Her daughter Candace is presently 16 years old and her son, Dylan, will be 10 years old in February. [3] This application only concerns her son Dylan. [4] Subsequent to the separation of the parties consent judgment was issued by the Court on June 6, 2002 which provided inter alia that the petitioner would have custody of Dylan subject to an agreement she had entered into with Dylan’s biological father Dan Culford. [5] The judgment also provided that the respondent would have reasonable access to Dylan which included every second weekend from Friday evening to Sunday evening and one week in each of July and August. The judgment stated “should Dylan ... not want to exercise access, then the Parties agree that he would not be forced to do so” and further, “[i]t is agreed that the child will refer to the Respondent as ‘Doug’ unless the child desires to do otherwise.” [6] There was also stipulation in the judgment which provided that the petitioner was to provide 90 days’ written notice to the respondent of any proposed change of residence of Dylan. [7] The petitioner and Culford have now decided that it would be in the best interests of Dylan that he be moved from Eastend, Saskatchewan to live with his father and common law wife in Edmonton, Alberta. [8] The respondent seeks an order prohibiting the petitioner from removing Dylan from the Province of Saskatchewan until she obtains a Court order allowing her to do so. [9] It is important to note that nothing in the judgment referred to above requires the petitioner to obtain such an order. It only provides that the respondent receive 90 days’ written notice. He was informed, verbally, by Culford of the proposed move in September or early October. [10] In the last year Dylan has been experiencing problems at home and at school. The petitioner took the child to Dr. Verma in Swift Current who prescribed Ritalin, suspecting Dylan suffered from Attention Deficit Hyperactivity Disorder. The Ritalin did not have the desired effect and Dylan was referred to Dr. Mathews, psychiatrist in Saskatoon who reported that Dylan may have Bipolar Mood Disorder. Different medications have been prescribed and at present, Dylan who is now under the care of Dr. Price in Eastend, is taking Zyprexa which is an anti-psychotic medication. [11] The petitioner also contacted the Mental Health Office in Swift Current in an attempt to set up some specialized counselling for Dylan. She has been advised, after numerous attempts, that there is no one in place to provide the counselling and treatment that Dylan requires. In addition, Dylan has been seen by an education psychologist in Eastend. [12] The petitioner, her present husband, Dan Culford and his common law wife have been discussing, for approximately year, how best to deal with Dylan’s needs. It was finally decided that it would be in Dylan’s best interests to reside in Edmonton with his father where help for Dylan was more easily accessible. [13] An opinion was filed from Dr. Price which stated “... it would be very advantageous for this child to be with his biological father in big centre viz Edmonton, where he would have immediate access to medical therapy; consultation with his psychiatrist and advanced modes of therapy including scholastic, which are only available in large centres.” [14] The father Dan Culford, despite living in Edmonton, has maintained relationship with Dylan. He has been in Culford’s care one to four weeks every summer, usually at Christmas and Easter, as well as various other times. [15] In custody and access report prepared by Francis Stewart on September 28, 2001, the interview with Dylan is reported as follows: see Doug enough but don’t see my real dad enough. That’s where would really like to spend more of my time, with my real dad. only get to see my dad for four or five days in row, and then have to come home again. My real dad’s name is Dan, but I’m not suppose to say that he’s my dad. Doug [doesn’t] want me to, so it’s my secret.... [16] In anticipation of Dylan moving to Edmonton, Culford and his wife will be moving, on January 1, into three bedroom house within two blocks of Overlander Elementary School in Edmonton and they have set up bedroom for Dylan. The school is equipped to provide resources for children with difficulties like Dylan’s. [17] The respondent, with the consent of the petitioner, did attend on Dr. Mathews in Saskatoon. He suggests in his affidavit that when he attended on Dr. Mathews on October 16 that Dr. Mathews was not aware of the pending move to Edmonton. find that suggestion rather difficult to accept. Attached to an affidavit is letter dated October from the petitioner to Dr. Mathews which sets out in some detail the planned move to Edmonton at the end of December. [18] In conclusion am not persuaded that an order should issue prohibiting Dylan from moving to Edmonton to live with his father. [19] An application by the petitioner will be required, to vary the access arrangements with the respondent. am advised by counsel that such an application has now been served and will be heard in January. [20] The application is therefore dismissed with costs.
The respondent seeks an order prohibiting the petitioner from removing her son from Saskatchewan until she obtains a Court order allowing her to do so. The child is the petitioner's son from a prior relationship. The petitioner plans to have the child live with his biological father in Edmonton so that he can get the specialized medical care that he requires. When the petitioner and the respondent separated, they consented to a judgment, which granted the petitioner custody of the child and gave access rights to the respondent. The consent judgment provided that the petitioner was to provide the respondent with 90 days notice of any proposed change in the child's residence. Notice of the upcoming move was provided to the respondent. HELD: The application was dismissed. The consent judgment does not require the petitioner to get an order before changing the child's residence. An application will be required by the petitioner to vary the access arrangements with the respondent.