J. U.F.C. of A.D. 1988 958 J.C. S. IN THE COURT OF QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: TWILA FAYE BROTHWELL (YACKEL) and DOUGLAS JAMES BROTHWELL RESPONDENT D. MCIVER for the petitioner G. CARSON for the respondent JUDGMENT CARTER J. DATE: JUNE 29, 1995 This is an application by Twila Faye Brothwell(mother) for an order varying the judgment of Dickson J. of the5th of January 1990, in which he gave judgment for divorce andjoint custody to the parents of two boys Matthew, born April 22,1984 and Luke, born June 3, 1986. No other corollary relief was set out in the divorce judgment. The father is dentist practicing in Melfort, and was so at the time of the divorce. Mother was then without employment. History of the Proceedings in F.L.D.: The parties married August 23, 1980 and separated in September 1988. They entered into separation agreement in December of 1988 in which they agreed to joint custody, residence with the father and generous access to the mother. That agreement contained provision that It shall be joint decision of the husband and wife to remove the children from the Province of Saskatchewan for any reason other than short vacation. In July, 1990, the mother commenced an application to vary the divorce judgment by granting mother sole custody of the boys, or joint custody with principal residence with mother. She based this application upon the grounds that she was being denied access, or was having difficulty with access. pre-trial was ordered on the issue. The pre-trial was heard in November of 1990 and as no agreement was reached custody investigation report was ordered. The report indicates that the father married June 1990, Sharon Poncelet, mother of children, and those children moved into the father's home with his own boys. Mother married again May 27, 1990. Her husband is Ivan Yackel. The report was filed with the court July 31, 1991 and recommended that the joint custody with principal residence with father continue. The report says that both Dr. Brothwell and Mrs. Yackel possess superior parenting skills and their ability to adequately parent the children is beyond reproach. The physical, psychological, social and economic needs of the children are being met by Dr. and Mrs. Brothwell and by Mr. and Mrs. Yackel as non-custodial parents. The investigator, Heather Warwick, B.S.W. recommended that the joint custody arrangement remain unchanged and she gave her reasons: This assessment reveals that the parties, prior to their separation in 1988, led an almost idyllic life in most favourable and supportive community. (I presume she speaks of Melfort and district.) Since that time, the children have remained in the marital home in that community, have maintained close contact with the extended family, have established friendships at school and at play and have begun to take part in social activities. The alternative being requested is to have the boys move to completely new community, away from extended family and friends. am of the opinion that the request is not in the best interest of the children. (The mother then lived in Regina.) In his affidavit of the 30th of July, 1990 filed in opposition to the mother's application for change in the divorce judgment which would give her sole custody or joint custody with principal residence with her, the father has this to say: That both children have been in my exclusive care since the separation except for periods of access by the petitioner. Both children have spent their entire life in Melfort. Both sets of grandparents live at Melfort and the children are completely established in Melfort in the terms of home, family and friends. Additionally the children have two sets of aunts and uncles and number of cousins that they are very close to in Melfort.... and in another paragraph: That am deeply attached and devoted to my children and in my view it would be devastating to them to uproot them from their lifelong home, family and friends. After the custody/access report was filed, the mother took no further proceedings and matters have remained as recommended by Ms. Warwick: joint custody, principal residence was father and generous access to mother. The application before me by the mother for variation of the corollary relief set out in the divorce judgment is as follows: a) an order that the applicant (mother) have sole custody of the children Matthew and Luke. Alternatively: b) an order providing that the primary residence of the children be with the applicant mother and c) an order preventing the respondent father from removing the children or either of them from the Province of Saskatchewan. The affidavit material filed on this applicationshows that the father has informed the mother that he is movingto Aurora, Ontario, at the beginning of July, 1995 and intends toenroll in a course at the dental college in Toronto, which willenable him to teach Public Health Dentistry. His reason for this move, he states in his affidavit, is that he has developed condition in his hand (or hands) which causes them to shake and he cannot continue working as dentist. He is at present on disability pension of $10,000.00 per month. He says that his income from disability insurance is secure whether he works or not, at this stage, but he would prefer not to rely on disability insurance. He has located and arranged to rent large house in Aurora and intends to commute from Aurora to Toronto days week to take the courses at the dental college there. The course is for two or possibly three years. If he wishes to get Masters Degree it will be three years. The applicant mother says that this would be change in the circumstances of the children of great importance to the boys, and warrants an application for variation. She says it would not be in the best interests of the boys to be uprooted from their home in Melfort where they have lived in their father's house since the parties separated, and mother has had generous access during that time, nor from the Province of Saskatchewan. Father says in his affidavit sworn May 15, 1995 that: The children will have all the traditional sports and recreational opportunities available to them in Aurora that they have in Melfort only with greater variety and greater opportunities. The area is virtual paradise in terms of recreation areas, lakes, etc. Mother in her affidavit says that the father will be commuting between Aurora and Toronto days week and will see much less of the boys than he did when they lived in Melfort. Father says his present wife does not work outside the home and will be able to care for his boys and her boys, while the applicant mother works outside the home and will not be looking after them. The applicant says if she gets sole custody she will not work outside the home and will remain in her home with the children. The access which the mother has enjoyed since December 1988 and perhaps before that, has been generous. Mother and her husband are now living on an acreage near the town of MacRorie, some 200 kilometres from Melfort. They have lived there since 1993, having moved there from Regina. The mother picks up and delivers the boys every other weekend from Friday after school to Sunday evenings. Friends and neighbours from MacRorie have filed affidavits attesting to the ability of the mother and her husband to care for the boys when they are with her, and the pleasure the boys have in being with her, and how they have fitted into the neighbourhood. In addition to the weekend access the mother has the following access: *six weeks during the summer school vacation *the entire Christmas Holiday except for Christmas Eve and Day *the entire Easter break of about 10 days If the father should move to Ontario with the boys he has offered two months in the summer; all the Easter and Christmas breaks and the spring break. He says he will pay for the cost of flying the boys to Saskatchewan and return for all the access except the Easter and mid-term break. (I am assuming the father meant airplane expenses, but he does not say so.) The mother provided me with comprehensive brief on the question of applications for variation of access and custody, including cases on the burden of proof, the question of the changed circumstances of the children and the best interest of the children. The application is made under section 17 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) which reads in part as 17(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively... (b) custody order or any provision thereof on application by either of or both former spouses or by any other person. (5) Before the court makes variation order in respect of custody order, the court shall satisfy itself that there has been change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change. The leading case on the question of changed circumstances of the children is Talbot v. Henry (1990) W.W.R. 251; (1990) R.F.L,. (3d) 415, Sask. C.A. In that case, Bayda, J.A. set out the procedure the judge must follow in variation applications. First the judge must determine if there are any changes in the circumstances of the children or presume as in this case if there will be any such changes if the father moves to Ontario. If there are no significant changes the judge cannot proceed to consider whether the proposed change is in the best interests of the children. must therefore compare the circumstances of the children when the Divorce Judgment was made on January 5, 1990 which gave joint custody of the boys to the parents, with no other corollary relief set out in the judgment to the circumstances now. The boys were at that time living in the home of the father, and mother had generous access as set out in the terms of their agreement of December 1988. That agreement included the term providing for the consent of both parents if the children were to be removed from Saskatchewan except for short holidays. Father's home has been the principal residence since then and mother has had the access set out above. The circumstances now are that the father intends to, and if the mother's application is not granted, will take the boys to Ontario for period of two and possibly three years. find that this is material and significant change in the circumstances of the children if the move is made. therefore turn to the question of what would be in the best interests of the children. There are great many cases arising out of the wishes of the custodial parent to leave the town, city or country where the custodial parent lives, taking the children with him/her, and the non-custodial parent wishes to prevent this from happening. In Heintz v. Heintz (1992) Sask. Decisions 1525-04 (Q.B.) the parents separated after 10 years of marriage, there was one child age 6. The parents entered into separation agreement providing that mother would have custody and father access and the agreement also provided that the mother was to give 45 days notice of any change of address. Mother wished to move, father applied to the court for an order barring her from moving or giving custody to the father or increased access. The mother was seeking better employment and wished to follow her new conjoint. refused to place the restriction sought upon the mother, but increased the access to the father. pointed out that in more recent years there has been an increasing tendency to allow the custodial parent to leave the jurisdiction or pursue stable relationship. In earlier cases in the 1970's (and before that) and the 1980's, there were great many cases preventing the custodial parent (usually but not always the mother) from moving even from one city to another in the same province, and from province to province or country to country. The custodial parent was (usually but not always the mother) and the parent with access usually, but not always the father. The courts made the orders preventing the moves upon the grounds that the custodial parent would not be able to exercise the access fixed by the court or by agreement. An example of the more recent jurisprudence in such cases is Levesque v. Lapointe 44 R.F.L. (3d) 31 (B.C.C.A.). The parents had children, born in 1982 and 1984. They moved from Quebec to British Columbia. They separated in 1985 and in 1987 entered into separation agreement providing for joint custody with the children living with the mother during the school year and with the father during the summer and out of weekends. The agreement provided that in the event the parents contemplated long term move outside Vancouver, the city where they were living, the custodial arrangements could be reviewed. Mother remarried and wished to move with her new husband to Alberta where they arranged accommodation. The father did not consent to this move, and mother applied for permission to do so. The chamber judge refused and the matter went to the Supreme Court of British Columbia. The children were then 1/2 and 10 1/2. There was no clause in the agreement of 1987 that either parent could not remove the children from British Columbia as set out above but the parents clearly contemplated that there might be request for such removal by one parent or the other. The appeal court pointed out that the mother's application was not brought as an application for variation of custody but as an application under the Divorce Act section 1(6) which provides: The court may make an order under this section for definite or indefinite period or until the happening of specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. The British Columbia Court of appeal said that from section 1(6) (page 325): it appears that court of competent jurisdiction could impose residence restrictions as an incidence of custody, on the custodial parent, but that is not, of course what the appellant (mother) sought in her application. Instead the application appears to have proceeded in the court below as if the appellant were asking to be relieved of court imposed restriction concerning residence. Counsel for the respondent, as part of his argument, submitted that it was implicit in the joint custody order granted at the time of the divorce that the parties would remain in the same locality, because otherwise "co-parenting" was practical impossibility. We seriously question the assumption that an order for joint custody, which contains no other term, condition or restriction, can be taken to impose requirement that the parents live in close proximity to one another. The judgment goes on to say that it was conceded that the mother had been the children's primary care giver, the principal residence being with her in the school term and the father having the care of the children during the summer holidays. They found that the mother's wish to move to Calgary was bona fide and not motivated by wish to thwart father's access. The court quotes Carter v. Brooks (1990) 30 R.F.L. (3d) 53 Ont. C.A. Morden A.C.J.O.: In most cases, would think it is an important factor to take into account, in favour of the custodial parent, that the existing custody decision (by order or agreement) shows that from day-to-day point of view the best interests of the child lie with the child's being with the custodial parent. Added to this, it is reasonable to think that an incident of custody includes the determination by the custodial parent of where the parent and child shall live.... and The nature of the relationship between the child and the access parent will always be of importance. The closer the relationship and the more dependent the child is on it for his or her emotional well being and development, the more likely an injury resulting from the proposed move will be. The reason for the move is important. If the motive is simply to frustrate access, then it would not be expected that court would decide in favour of it. On the other hand, if the move is necessary, for example for the maintenance of employment this would count in favour of the move. In Oldfield v. Oldfield (1991) 33 R.F.L. (3d) 235 Blair J. of the Ontario Court (General Division) set out list of factors relevant in determining the best interests of the child as outlined in Carter v. Brooks (supra). The list is (1) The views of the custodial parent (which he said should generally be paid reasonable measure of respect); (2) The fact that existing custodial arrangements showed that from day-to-day point of view the best interests of child lie with the child's being with the custodial parent; (3) Determination by the custodial parent where parent and child will live, as an "incidence of custody"; (4) New family unit, if it exists, and how the well-being of that family unit bears on the best interests of the child; (5) The nature of the relationship between the child and the access parent (the closer the relationship and the more dependent the child is on it for his emotional well-being and development, the more likely an injury will result from the move); (6) The reasons for the move; (7) The distance of the move; (8) The child's views; and (9) The Divorce Act. R.S.C. 1985 (2nd Supplement) C.3, principle that child "should have as much contact with each spouse as in consistent with the best interests of the child". Among the Saskatchewan cases on the point are: Wells v. Wells (1984) 1984 CanLII 2646 (SK QB), 38 R.F.L. (2nd) 405. In that case the parties moved from Ontario to Saskatoon where the father was employed with the Potash Corporation of Saskatchewan commencing September 1981. They married in November of 1981, the child was born in May of 1982 and in July of 1982 mother moved with the child out of the matrimonial home and commenced proceedings for custody and maintenance and moved for interim custody and maintenance. On August 4th after hearing the application in chambers on affidavit evidence, gave inteirm custody to the maother. The trial on the issue of divorce, custody and maintenance was heard by Gagne J. Father had counterclaimed for decree of nullity or divorce and custody. Gagne J. granted the divorce and awarded custody to the father and access to the mother. Mother appealed and the court of Appeal reversed Gagne J.'s decision but added provision that neither party could remove the child from the jurisdiction without the consent of the other or court order. This order was made April 1983. Mother then moved for an order removing the restriction and for the reasons set out in the judgment her application was granted. On appeal to the Court of Appeal, this decision was upheld. Adie v. Adie 1991 CanLII 7796 (SK QB), 89 Sask. R. 183. Mother allowed to move to New Zealand with 12 year old son in her custody for period of one year. Grant v. Brotzel 1993 CanLII 9109 (SK QB), 115 Sask. R. 96, the mother permitted to move to British Columbia with the child in her custody. Menzies v. Menzies 1992 CanLII 8038 (SK QB), 107 Sask. R. 19 mother permitted to move back to her native England with an and year old child, where mother was lonely and unhappy and had made few friends in Saskatoon and father had separated from her and was living with another woman. Janette Rita Gordon (formerly Goertz) v. Robin James Goertz, Gagne J., U.F.C. 1035 OF 1990, unreported oral judgment. In that case, after lengthy trial on number of matters, including custody, awarded custody to the mother as the chief care giver to the child whilst the parties lived together and after they separated. The father was given structured but generous access. The petitioner mother is dentist, and after the trial and an appeal to the Court of Appeal where in the decision was upheld, mother then applied to take the child to Australia where she has been accepted at University to qualify as an orthodontist. She says she had applied throughout Canada and other places and this was the one place she was accepted. Father opposed. The matter was heard in Chambers and Gagne J. ordered that mother could move to Australia with the child, Samantha, and the respondent would have liberal and generous access to his daughter in Australia on one month's notice and provisions for possible access in Hawaii and ordered that the child not be removed from Australia by the mother. On appeal, the Court of Appeal upheld this order. am informed that the father has got leave to appeal to the Supremem Court of Canada on this matter. The Levesque (supra) case gave consideration to most of the relevant factors set out above. There is no dispute in that case before me that the father had, together of course, with his present wife, the day to day care of the children from their early years onward, except when they were exercising the access to the mother. quoted the father's remarks in his 1990 affidavit about what devastating thing it would be if the boys were uprooted from their home in Melfort and all their extended family, to make their home with their mother in Regina. Now, five years later it is according to father no longer devastating to uproot the boys but in their best interests to move them with him to "a virtual paradise" in Aurora. The mother now says that it would not be in the best interests of the boys to take them out of Saskatchewan, where their roots are and where their extended family lives, and of course where mother and her husband live. There is no suggestion that the boys are not well cared for in either home, and that they are unhappy with either parent or step-parent. The oldest boy is 11 and his brother is 9. felt anxious about how the boys themselves felt about the move, which of course they knew about. Suffice it to say that they were not wildly enthusiastic about the move, nor were they upset at the prospect but were mildly interested in the proposed move. In the meantime they told me that they were shortly going to fly to New Orleans to be met by their mother and their step-father (as they called their mother's husband) and she would take them to Mississippi where they would spend the summer whilst their step- father took some courses. Father's reasons for moving to Ontario are notunreasonable if the course he wishes to take is not offered atthe Dental College of the University of Saskatchewan. Father has not filed any medical certificate about his condition, nor has he in his affidavit said whether the course is available in the province. However, no objection was taken by the applicant to father's affidavit on that account and presume this was not an issue. I did not form the opinion that his move was to thwarthis ex-wife's access, since there does not seem to be any disputeabout this since 1990, and indeed friends and neighbours fromMacRorie filed affidavits stating how much the boys enjoyed theirvisits with their mother and how they fitted in with the peopleof that town and environs, and he has, in addition offeredgenerous access. In Korpesho v. Korpesho (1982) 31 R.F.L. (2d) 440, Monnin J.A. said at page 451: Society permits divorce and permits or even encourages remarriages. Once second stable union has been established the new spouses or the new family unit must be allowed to live normal family life. In country as vast as ours, with various economic regions, people may have to move from one province to another....in search of employment or to better one's type of employment. Because of the reasons given above: father beingthe long-time custodial parent, the reasons for the proposedmove, the generous access offered I dismiss the application ofthe mother. The father will therefore be allowed to remove the boys from the Province of Saskatchewan to the Province of Ontario for the purpose of taking the course offered by the University of Toronto. Mother will have access during the months of July and August, the entire Christmas holiday of two weeks starting Christmas 1995, the entire Easter holiday starting Easter of 1996, the entire mid-term break (usually in February). If the mother wishes to have long weekend access at her expense with reasonable notice to father she can arrange same. The costs of the travel to and from Saskatchewan will be borne by the father. There will be no order as to costs.
The Mother applied to vary the custody provisions of the decree nisis for divorce which provided for joint custody of the parties' 2 children, aged 11 and 9 years. Under the existing order the children's primary residence was with their Father. A custody investigation conducted in 1990 when the mother had first commenced this application had recommended that the existing arrangement be continued. The Father now intended, however, to move with the children to Ontario to take additional education. HELD: Application dismissed. 1)The Judge found that the move to Ontario was a sufficient change of circumstances to permit a variation application to proceed. She therefore proceeded to consider if the move was in the best interests of the children. 2)The Judge reviewed recent authorities from across Canada dealing with whether a custodial parent should be permitted to move with the children. 3)In the circumstances of this case the Judge was convinced that the move was reasonable and was not motivated by any desire on the part of the Father to thwart the Mother's access.