This is a very interesting case, and I encourage everyone to read it. Most couples involving a foreign spouse never plan for the eventuality of divorce, let alone the custody situation of the children born of the relationship if the foreign spouse wishes to relocate back to his or her country. This situation could have been easily avoided with a good prenuptial agreement covering custody.
Snelgrove v. Butler
BetweenNorman Graham Snelgrove, Applicant,
and
Claire Louise Butler, Respondent
[2010] N.J. No. 150
2010 NLUFC 11Docket: 200702U0996 Newfoundland and Labrador Supreme CourtUnified Family Court
St. John's, Newfoundland and LabradorD.E. Fry J.Heard: January 25-29, February 18, 19 and March 1-5, 2010.Judgment: April 21, 2010.
(180 paras.)
Court Summary:
Held: The Court denied the Respondent's application to relocate to the UK with the three children of the marriage. The relocation was determined not to be in the best interests of the children as it would disrupt the positive relationship and daily access with their father and the plans and benefits surrounding the relocation were uncertain. Joint legal custody was awarded with a parenting plan to be determined when the Respondent decides if she will relocate to the UK on her own or remain in the province.
Cases, Statutes and Authorities cited:
K.K. v. G.L. and B.J.L., [1985] 1 S.C.R. 87.
MacDonald v. MacDonald (1998), 36 R.F.L. (4th) 257 (Nfld. C.A.).
Gordon v. Goertz, [1996] 2 S.C.R. 27.
Clemens v. Clemens, 2009 NLUFC 19.
Whalen v. Whalen, 2005 NLCA 35.
Burns v. Burns, 2000 NSCA 1.
Rushinko v. Rushinko (2002), 161 O.A.C. 85 (C.A.).
Bjornson v. Creighton (2002), 31 R.F.L. (5th) 242 (Ont. C.A.).
Terris v. Marcoux, [2003] O.J. No. 2829 (Sup. Ct.).
Brushett v. Brushett (1993), 109 Nfld. & P.E.I.R. 129 (Nfld. S.C. (T.D.)).
Snook v. Lane, 2006 NLUFC 6.
O'Brien v. O'Brien, [2001] N.J. No. 112 (S.C. (U.F.C.)).
LaSaga v. Foote, [2005] N.J. No. 319 (Prov. Ct.).
King v. Cole, 2006 NLUFC 41.
Burry v. Healey, 2006 NLUFC 46.
Thornhill v. Henderson, 2008 NLUFC 34.
Grandy v. Grandy, [1999] N.J. No. 268 (S.C. (U.F.C.)).
Park v. Walsh, 2003 NLSCTD 33.
Jennex v. Cox, 2005 NLUFC 8.
Andrushko v. Remillard (2003), 222 Nfld. & P.E.I.R. 82 (N.L.S.C. (T.D.)).
Young v. Young (2003), 34 R.F.L. (5th) 214 (Ont. C.A.).
Clift v. Reid, 2008 NLTD 189.
Templeman v. Whalen, 2010 NLUFC 3.
Evely v. Evely, 2008 NLUFC 7.
Young v. Young, 2009 NLTD 98.
Hancock v. Elkins, 2003 NLSCTD 138.
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16.
Children's Law Act, R.S.N.L. 1990, c. C-13, s. 31.
D.A. Rollie Thompson, "Relocation and Relitigation: After Gordon v. Goertz" (1998), 16 Can. Fam. L.Q. 461.
Nicholas Bala & Joanna Harris, "Parental Relocation: Applying the Best Interests of the Child Test in Ontario" (2006), 22 Can. J. Fam. L. 127.Counsel:
REASONS FOR JUDGMENT
D.E. FRY J.:--
INTRODUCTION:
1 Mr. Snelgrove is a 40-year-old chartered accountant from Newfoundland and Labrador, who met Claire Butler, a 35-year-old British citizen and piano teacher while they were both residing and working in Bermuda in October 2004. Mr. Snelgrove worked in Bermuda for a total of 11 years, while Ms. Butler was employed with the Bermuda school of music as a piano teacher for approximately 3 years prior to the parties' marriage on October 1, 2005.
2 Shortly after the parties' marriage, Ms. Butler became pregnant with the couple's first child and they relocated to Newfoundland and Labrador on April 2, 2006. Ms. Butler entered Canada under a six-month renewable temporary resident visa. Kate Snelgrove was born on June 23, 2006, followed by twins Zach and Dylan Snelgrove, born June 8, 2007.
3 The parties separated in December 2007, but lived under the same roof until an exclusive possession order of the matrimonial home in favor of Ms. Butler was granted in September 2008. Ms. Butler and the three young children remained in the home until its sale in April 2009. Both parties now reside in separate residences. There is an interim joint custody and access order in place.
4 There are a number of applications before the court, including divorce, child support, spousal support, division of property, custody, access and relocation. This trial and decision relates only to custody, access and Ms. Butler's application for relocation to the UK.
EVIDENTIARY BACKGROUND:
5 Mr. Snelgrove is a graduate of Memorial University's commerce program and is also a chartered accountant. Since graduation, he was employed for 11 years in an accountancy firm in Bermuda. His evidence was that he always hoped to return to Newfoundland and Labrador and raise a family. Since returning to Newfoundland and Labrador in 2006, he has been employed with Fishery Products International, Department of Finance, and with the City of Mount Pearl since July 2007.
6 Ms. Butler holds a Bachelor of Music (Honours) in piano performance from the Royal College of Music in London, UK. From 1995 to 2000 she was a private piano teacher with two schools in the UK. From September 2001-2002 she worked in administration dealing with landlord tenant leases in London, UK. From October 2002 to March 2003, she worked as a nanny and piano and English teacher in Greece. From September 2003 to April 2006, she was a senior piano teacher at the Bermuda School of Music and from September 2006 to December 2007, she was a part-time piano teacher in St. John's, Newfoundland and Labrador. She has not worked outside the home since December 2007.
7 Mr. Snelgrove and Ms. Butler met in Bermuda in October 2004 and were married October 1, 2005. Both of the parties gave evidence as to the tumultuous nature of their relationship during this one year period. Each believed the other had continued to have intimate relationships with other persons after they began dating. Mr. Snelgrove indicated that one week after meeting Ms. Butler for the first time, he kept his rendezvous in New York City with a former girlfriend. Mr. Snelgrove indicated that although he had met and dated Ms. Butler, he did not feel that he was committed in any way to the relationship and so felt free to continue with his previous relationship. He did however indicate to Ms. Butler that he was spending the weekend alone in New York. In November 2004, a former boyfriend of Ms. Butler's came to Bermuda to visit her and she did not disclose that she had begun a relationship with Mr. Snelgrove as she felt that he might not come over to visit her. She stayed at Mr. Snelgrove's place while her former boyfriend stayed at her place with her roommate. Mr. Snelgrove was upset with this arrangement, and did not believe that Ms. Butler had ended her relationship. Mr. Snelgrove went to visit his family in Newfoundland and Labrador in November 2004, and he indicated he felt free to have a relationship with someone in Newfoundland and Labrador given his view that Ms. Butler was spending time with her former boyfriend from the UK. Although Ms. Butler and Mr. Snelgrove continued their relationship after his return from Newfoundland and Labrador, these incidents and others caused tension in their relationship and their lack of trust began to grow. They did, however, continue their relationship, which both described as a bit shaky, and became engaged in mid-January 2005 as a result of an unplanned pregnancy. They planned to be married in March 2005 in Newfoundland and Labrador.
8 Mr. Snelgove testified that several weeks later, Ms. Butler indicated that she did not wish to be married while pregnant and wanted to postpone the wedding. They continued with their relationship for several more weeks until in February, 2005 Ms. Butler indicated that she wanted to call the whole thing off, and she was planning to terminate the pregnancy. She had discussed the matter with her parents and had made arrangements to fly to the UK. She agreed to stay with him until she went to the UK, gave him back his ring and indicated that she was planning to get a new apartment for herself. Mr. Snelgrove testified that he continued to try to convince her not to go during this period of time. Ms. Butler testified that the decision to terminate the pregnancy was made jointly. Mr. Snelgrove did advise her employer, at Ms. Butler's request, that she was absent from work due to a miscarriage and had gone home to the UK for a short period of time to recuperate.
9 Several days after the procedure in the UK, Ms. Butler called Mr. Snelgrove indicating that she had changed her mind and felt that they could make it as a couple and asked him to come to the UK and to bring her engagement ring. She did not want him to meet her at her parent's home and asked him to meet her in London instead. Mr. Snelgrove had a ticket to Newfoundland and Labrador at this time, but canceled his ticket and purchased a ticket to the UK. They spent five days together at a hotel in London, enjoyed meals out and did some sightseeing. This reconciliation was described as positive until an incident occurred over lunch at a popular tourist destination. Mr. Snelgrove described this conversation as dealing with his reasons for wanting to move to Newfoundland and Labrador after their marriage. They talked about how important it had always been to him and he explained that his former three-year relationship had broken up because it was so important for both of them to be near their families in different provinces of Canada. Given that they could not reconcile where to reside, they had parted ways amicably. Mr. Snelgrove indicated that Ms. Butler got extremely angry, jumped up and said to him: "Is that the only reason you are with me, because I'm willing to live in Newfoundland and Labrador?" She bolted the restaurant and he chased her down the street but did not see her again until he returned to the hotel room at the end of the day. He stated that they discussed the argument but there was no resolution. On their last day in London, she went to Liverpool to see her former boyfriend saying she wanted to bring "closure to the relationship". This was the same gentleman who had visited her in Bermuda in November 2004. Mr. Snelgrove indicated he was upset and asked her not to go as she had indicated to him in November 2004 that the relationship had been over for some time, and he felt there was no need for her go to see him again. She did go to see him before they departed London.
10 By March of 2005, Mr. Snelgrove and Ms. Butler were back in Bermuda and she was no longer looking for her own place and moved in with him. In April 2005 she gave up her own apartment. At this point, Mr. Snelgrove indicates that he was not actively planning to marry Ms. Butler. In April 2005 Mr. Snelgrove also took his postponed trip to and Labrador to look at property. He went alone this time.
11 In June 2005 he and Ms. Butler who had continued to live together, planned a trip to Newfoundland and Labrador and in July 2005 had a vacation in Trinity, Newfoundland and Labrador. She met his family while there and generally the trip went well until an incident in Grates Cove. Mr. Snelgrove indicated he received an e-mail from his former girlfriend regarding the death of a pet and he responded with condolences. Apparently this sparked a huge argument and Ms. Butler told him that if he could not let go of the past, they had no future.
12 When they returned to Bermuda in late July 2005, Ms. Butler took off her ring and gave it back to him indicating that their relationship was over. This was the second time the ring was returned. At this time Mr. Snelgrove had given up his apartment, and the two of them were house-sitting for a friend. E-mail correspondence between Ms. Butler and Mr. Snelgrove dated Wednesday July 27, 2005, entered into evidence indicates that Ms. Butler was upset because she believed that Mr. Snelgrove was only interested in having babies and not being married to her and she expressed concern as to where the relationship was going. Mr. Snelgrove responded in a positive way and indicated that he did want the relationship to continue. On the next Saturday night Ms. Butler asked for her engagement ring back and urged him to set a date for the wedding. By August 4, 2005, a further e-mail from Mr. Snelgrove to Ms. Butler outlined details of the wedding being planned. The date was set for October 1, 2005, in Bermuda.
13 In late August or early September 2005, Ms. Butler went to England to purchase her wedding dress. Mr. Snelgrove asked her not to see her former boyfriend while she was in England, and she agreed. When she returned from England shortly before their wedding, she told him that she had seen her former boyfriend "for closure". Mr. Snelgrove indicated that he was upset. He called his sister and asked for advice, indicating that he did not want to go ahead with the marriage. Following this conversation, he talked to Ms. Butler and indicated that he did not wish to get married just yet. He described her reaction as angry and stated that she indicated that if there was no marriage there would be no dating. She was upset, tearful and indicated that she wished to get married and he ultimately agreed.
14 The wedding took place on October 1, 2005, attended by friends of the couple followed by a reception on a boat. Mr. Snelgrove described his disappointment in Ms. Butler's behaviour that evening as she had consumed considerable champagne and had continued to party on her own by attending another wedding reception going on in the hotel where they were staying. He went back to the room by himself, and she returned later that night. Mr. Snelgrove testified that he thought about getting the marriage annulled. On cross examination, Mr. Snelgrove testified that he did not raise this with Ms. Butler, nor did he take any steps in this regard. Two weeks later they discovered that Ms. Butler was pregnant, and he then said he knew "there was no way out". He described the first ultrasound as turning him to "emotional mush" as he saw the baby reach out and show all her fingers. Both parents described themselves as very happy to be having a baby and the couple began to make plans to move to Newfoundland and Labrador in March 2006.
15 In November or December 2005, the newly married couple returned to Newfoundland and Labrador and attended a wedding reception in their honour. Ms. Butler gave a speech at this reception indicating how happy she was to be moving to Newfoundland and Labrador, and how happy she was to become part of the large extended Snelgrove family as she had been an only child and was somewhat lonely growing up. Both Mr. Snelgrove and his mother testified as to these events. Ms. Butler indicated that she had a very positive experience and enjoyed the wedding reception. Ms. Butler and his parents left early because Ms. Butler had been to the hospital earlier that day because of minor complications related to her pregnancy and had been urged to take it easy.
16 By all accounts from January 2006 until March 2006, there were no major incidents in this relationship. Both parties had given their notice to their respective employers and Mr. Snelgrove had assisted Ms. Butler in getting her maternity benefits from the Bermuda school of music. As they were packing up the apartment to leave Bermuda, Ms. Butler found a box within a box under the bed. When she opened it she discovered that it contained a list of women with whom Mr. Snelgrove had had intimate relations. Most importantly, from her perspective, her name was not the last on the list. She was very upset and indicated in her testimony that she was not prepared to move with him to Newfoundland and Labrador. Mr. Snelgrove testified that indeed he had made this list and described how he and his friend several years before had been talking about the number of their relationships over a few beers and started the list. He had kept up the list and the last name on the list after Ms. Butler's was the result of his visit to Newfoundland and Labrador when they had broken up. He testified that he had searched for the list prior to their marriage, but had not been able to find it. Eventually he convinced Ms. Butler that he had been faithful since that time, and they did fly together to Toronto where they cleared customs and on the next day flew to St. John's arriving on April 2, 2006. Mr. Snelgrove testified that the immigration officer stamped Ms. Butler's passport and she was given a six-month temporary resident visa. He testified that the officer advised them, in circumstances such as theirs, a permanent residency application would likely be dealt with within 18 months.
17 From April 2006 until June 2006 when Kate was born the couple settled into their new home which had been purchased by Mr. Snelgrove in July 2005. Mr. Snelgrove found employment with FPI. Unfortunately things did not go smoothly in their relationship as Ms. Butler found some evidence on the computer that Mr. Snelgrove had been visiting an online dating service. She confronted him with this information. He explained that he had started looking at this site in Bermuda as a couple of friends of his had used the internet to find dates. He was skeptical but had checked it out and looked at a few profiles every 2 to 3 weeks. He said he found it amusing. He showed Ms. Butler that he had no username or password, and that no profile, no fee nor any contacts had been established by him online. She asked him never to use the site again and he agreed. She continued to be upset by this and told him that she was going to go to England to have the baby. She had a ticket booked and packed her bags. He continued to try to convince her that he did not use the dating service, and she finally relented and canceled her ticket. She testified at trial that she forgave him after he explained more fully, as she had not originally understood how the site worked.
18 During the month of May/June 2006, Mr. Snelgrove had to travel to the UK for work purposes with FPI and this also upset her as she was left alone in a new country and was in the late stages of her pregnancy. Mr. Snelgrove stated that he contacted her frequently by telephone and that his family was available to assist if she needed anything and that he arrived back with several weeks to spare before the birth of the baby.
19 Mr. Snelgrove also enquired from time to time about Ms. Butler's progress on filling out the permanent residency forms for immigration purposes. Ms. Butler testified that she did have the forms but had not completed them, because she was required to have a chest x-ray and she could not do so while pregnant. Mr. Snelgrove testified they had several discussions about the types of information that was required to be submitted with the application and he encouraged her to requisition the appropriate documentation while she was waiting to get the x-ray.
20 Kate was born on June 23, 2006, following a caesarian section. Ms. Butler's mother was unable to attend for the birth but did visit the family for Christmas 2006. Mr. Snelgrove indicated that he and Ms. Butler shared parenting responsibilities of the new baby with him attending work during the day and helping out when he returned following work. Ms. Butler indicated that she was primarily responsible for the care of Kate when she returned home from the hospital. She asked Mr. Snelgrove not to have too many friends and relatives over as she needed to get herself settled in to her mothering role. He respected her wishes in this regard.
21 By the end of July 2006 Mr. Snelgrove was anxious to take the new baby around the Bay to visit his parents. He proposed that they drive out and stay overnight. The next morning Ms. Butler indicated that she had changed her mind and she was not agreeable to go. Ms. Butler testified that she had never agreed to stay overnight. Mr. Snelgrove testified that Ms. Butler said "I'm the mother and what I say goes". Ms. Butler denied that she had made these comments but did agree that she said she and Kate would not be going to visit his parents. Following this argument, she took Kate and left the house for a short walk. When she came back, Mr. Snelgrove asked her to give him the baby and he and Kate would go around the bay and visit his parents. She refused. He followed her around the house, asking her to give him the baby. She continued to refuse. She then sat down on the sofa in the front room with Kate in her lap. Mr. Snelgrove restrained Ms. Butler by pushing her back and took the child from her and went out and put the baby in the car seat. Ms. Butler followed him and jumped into the van and for approximately the first half an hour of the drive neither of them spoke. Mr. Snelgrove ultimately apologized to her, and indicated that he was "out of order, and he was sorry for that". They stopped in at his sister's place where Ms. Butler expressed her concern about the trip and explained why she was upset with Mr. Snelgrove. Mr. Snelgrove indicated that he followed his sister's advice and returned to St. John's with Ms. Butler and the baby.
22 Ms. Butler describes this incident differently. She indicates that Mr. Snelgrove put his hands around her throat and threatened to kill her and then grabbed the baby and jumped into the van. The rest of the events are similarly described by both parties. Ms. Butler did not report this incident to anyone at this time.
23 The first contact this family had with the authorities was May 30, 2007, starting with the police and then Child, Youth and Family Services. The incident that led to contact with the authorities was the result of an argument between the parties as to who would care for Kate when Ms. Butler went to the hospital to have the twins who were expected in June 2007. Mr. Snelgrove had arranged for his parents to come into St. John's and move into the house and look after 11 month old Kate while Ms. Butler was in hospital. Ms. Butler said she called the police to show Mr. Snelgrove that "she had power in the relationship". The police assessment of the situation was that there was no violence involved and that this was a stress related incident due to the pregnancy. Child, Youth and Family services followed up with the family. Regular contact was maintained with Ms. Butler and the July 2006 alleged threat and choking incident was not raised with anyone until November 15, 2007, when the marital relationship had deteriorated much further.
24 Mr. Snelgrove testified that when Kate was approximately 2 months old Ms. Butler called him at work and told him that she and Kate were going to England. She was not happy in Newfoundland and Labrador. He indicated that he was speechless when she said this to him and consulted a lawyer to determine what, if anything he could do if she went without permission. At around the same time, he testified that he found a completed British passport form for Kate. Ms. Butler told him that if their marriage broke down, as she was a British subject with children, she could not be forced to stay in Newfoundland and Labrador. He continued to press her to apply for permanent residency and was going through the application with her page by page and she advised him that she would not fill it in. She told him she could not be made to stay and that the authorities would not separate a mother and child. Ms. Butler testified that the British passport form that Mr. Snelgrove referred to as completed was not completed. It was just an application form. Ms. Butler did not refute the rest of this information. She did testify that she was too busy to fill out the permanent residency application because she had a new baby. After the boys were born, she indicated that she did not wish to remain in Newfoundland and Labrador and therefore did not seek permanent residency status.
25 The couple went to marriage counseling during the summer of 2006, but agreed after one session not to return and that they would work on their relationship themselves.
26 By September 2006, Ms. Butler purchased a piano for the home and began to teach piano students part time at a music school. This occurred on two evenings a week and for a few hours on Saturday. Mr. Snelgrove looked after Kate during these times. In the fall of 2006 the family learned that Ms. Butler was pregnant again and in January 2007 learned she was expecting twins. Ms. Butler described this pregnancy as good, not difficult and noted that she was able to teach up to the end.
27 In December 2006, Kate's first Christmas, Ms. Butler Senior came from England to visit the family. This was the first time she had met Mr. Snelgrove and his family. Everyone went around the bay and stayed with his family and had a very enjoyable time. The two grandmothers went to church together and the families socialized together. Mr. Butler Sr. remained in England as he is not a traveler. Ms. Butler indicated that she would like to go back to the UK to visit with her parents for three weeks. Mr. Snelgrove purchased a ticket for Ms. Butler and Kate to go to the UK. Ms. Butler subsequently asked him to try to change it so she could fly on the same dates as her mother so she would have help with Kate. He was unable to change the date and approximately 2 days before she was due to go, she changed her mind as she was now approximately 3 months pregnant and not feeling well. The purchase of this ticket was confirmed by the letter (entered as an exhibit) dated March 21, 2007, to Air Canada from Norman Snelgrove whereby he sought and received a refund for the two tickets.
28 When Mr. Snelgrove later sought a non-removal order from this court, he reflected upon this and realized that in order for Kate to travel to the UK there must have been a passport, although he knew nothing about it. Ms. Butler denies that she had a passport for Kate and cannot explain how she expected to visit the UK with her daughter without a passport.
29 Mr. Snelgrove described the relationship between Ms. Butler and his mother as evolving over time, but in the wrong direction. At first, they had a good relationship, and spent time together around the bay and in St. John's. Mr. Snelgrove indicates that Ms. Butler was learning to play cards, and that his family helped with the house. Ms. Butler indicated her mother-in-law, "is old-school" and that she would arrive at their house and take over. She would roll up her sleeves, clean up, do dishes, laundry, fold clothes and scrub floors. Mrs. Snelgrove testified and agreed that this is how she would approach things. She said when she came to town, she would cook and clean and do as much as she could to help out. Mr. Snelgrove agreed that his mother did come in and take over, but indicated that the house was spotless when she left. He and Ms. Butler clashed over this, as he took up his mother's position and suggested to Ms. Butler that she could tidy up more and keep the house in better shape. This did not do much to improve the relationship. Ms. Butler also complained that Mrs. Snelgrove interfered with respect to the parenting of Kate. For example, Ms. Butler indicated she wanted to do things by the book and did not wish to give Kate any solids until she was at least six months old, while Mrs. Snelgrove offered that she should have pablum at about three months. Mrs. Snelgrove also advised Ms. Butler that it was not a good idea to have Kate in bed with them and that she should sleep in her own crib or they would have trouble getting her out of their bed later on.
30 Ms. Butler was admitted to the hospital unexpectedly, late in her pregnancy, due to either false labour or high blood pressure or gestational diabetes. She had a scheduled date for a C-section but due to these factors had to be admitted earlier. Mr. Snelgrove contacted his parents and asked them to come to St. John's to look after Kate. Once they arrived, he went back to the hospital to be with Ms. Butler. He had arranged for a private room for her, but once she found out that his parents were looking after Kate, she was furious and checked herself out of the hospital. Mr. Snelgrove describes the nurses running after Ms. Butler and requesting that she come back. She requested a discharge, which was denied, but she left anyway and went home. Ms. Butler disputes that there was any danger to the babies with her leaving the hospital and does not recall the nurses trying to convince her to stay. Once she arrived home, she took Kate from her grandparents and went straight to her room. Mr. Snelgrove explained to his parents that Ms. Butler was not happy with them caring for Kate. Mrs. Snelgrove described feeling very hurt and unwanted and she and her husband immediately left and went back around the bay.
31 Approximately a week later, Mr. Snelgrove and Ms. Butler again were discussing what would happen with Kate when she went to the hospital. He indicated that he felt his parents should care for Kate and she indicated she did not agree and wanted to get someone else. He had planned to be off work that week to be with his parents and Kate. Ms. Butler said that she would not allow this and contacted the police, which resulted in the visit of the police to the family home on May 30, 2007. The police had a discussion with both Ms. Butler and Mr. Snelgrove. They asked Ms. Butler if she felt she was in any danger or if her daughter was in any danger and she indicated that she did not. The police questioned why they were there. She advised them that she wanted them to tell her husband that his parents could not care for their daughter while she was in hospital.
32 On June 8, 2007, Ms. Butler was admitted to hospital following a visit to the doctor's office and twin boys Zack and Dylan were born that night. Mr. Snelgrove arranged for his parents to care for Kate while Ms. Butler was in the hospital. Mrs. Butler arrived from England to assist with looking after the three babies and Mr. Snelgrove returned to work. Mrs. Butler returned to England after approximately 3 weeks and Mr. Snelgrove and Ms. Butler began to manage their young family on their own.
33 Child, Youth and Family Services had been attempting to follow up from the police referral regarding the May 30, 2007, visit and had attempted a home visit for a few days, but did not find anyone at home. On June 12, 2007, social worker Bonnie Knight made contact with Mr. Snelgrove, who advised that Ms. Butler has given birth to twin boys on the previous Saturday. The social worker discussed the incident that had occurred, and Mr. Snelgrove indicated from his perspective what had occurred and what the police had said. The social worker indicated that she would follow up with Ms. Butler when she was able to have a home visit.
34 The follow up home visit occurred on June 19, 2007. Ms. Butler was home and advised that her mother was putting Kate to sleep upstairs while she was looking after the two boys downstairs. Ms. Butler described the incident that had occurred as being over "something small". She advised that she does not agree with Mrs. Snelgrove's parenting style and indicated that she is very controlling. Ms. Butler advised that she is very particular about things and believes that Mrs. Snelgrove does not take the same care as she does. The social worker's notes indicate that Ms. Butler advised the social worker that she and Mr. Snelgrove have a great relationship but that Mr. Snelgrove does recognize that there are relationship issues between them both. The social worker's notes state that "worker explored what led Claire to call the police during their incident. Claire advised that she wanted Norm to know the consequences and to let him know that she has power in the relationship and would not let him away with such statement. Worker explored Claire's feelings of safety. Claire advised that she does not feel at any danger. She advised that Norm is a fantastic father and a good husband. She did express concern in the past when she found him on online dating agencies. She advised she now has trust in him".
35 On August 21, 2007, the social worker followed up with Ms. Butler who advised that things were going well. The social worker's notes indicate that Ms. Butler advised the social worker that she had the assistance of a student for approximately 4 hours each day to help her with the children. She advised the social worker that their relationship is pretty good and that Mr. Snelgrove is now working with the City of Mount Pearl. The worker advised that she wanted to meet with Mr. Snelgrove prior to a decision being made on the file.
36 On October 11, 2007, the social worker met with Mr. Snelgrove at her office. The social worker's notes indicate that Mr. Snelgrove described the incident that occurred on May 30, 2007, as being the result of Ms. Butler's dislike for his mother. He related a number of incidents where his mother and Ms. Butler have clashed over the housekeeping, organization of the household, care of the children etc. The social worker's notes indicate that Mr. Snelgrove advised that most of the conflict in his relationship with Ms. Butler is related to his parents spending time with the children. Ms. Butler will allow his parents to spend time with the children while she is present. However, conflict arises when he wants to take the children to his parents' home or drop them there for a visit. Ms. Butler tells him "she will not allow him to take the children to his parents". He feels there's no point in arguing with her as there will be no resolution to the argument. Mr. Snelgrove advises that Ms. Butler is a great parent and always attentive to the children's needs. Mr. Snelgrove also advised that he plans to consult a lawyer regarding his legal rights in terms of making decisions around who his children can visit and whether he has the right to take the children to his parent's home for a visit. The social worker inquired as to what he thought would happen if he took the children to his parents' home and he replied: "she would probably call the police again".
37 On November 6, 2007, the social worker consulted with her program manager regarding the assessment to date and she was directed to prepare the file for closure and explore marriage counseling for Mr. Snelgrove and Ms. Butler.
38 On November 15, 2007, social worker Bonnie Knight made a call to Ms. Butler to schedule an appointment to discuss file closure and the referral for marriage counseling. When the worker inquired as to how Ms. Butler and Mr. Snelgrove were making out with the children, Ms. Butler indicated to the social worker that she had found a black box under the bed with the names of women that Mr. Snelgrove had slept with (this box was found prior to the move to Newfoundland and Labrador in March 2006), and she told the social worker she felt she had no choice but to separate. Ms. Butler also indicated that there were past instances where Mr. Snelgrove had been aggressive with her and disclosed that he had grabbed her by the throat and threatened to kill her. She advised the social worker that this had happened approximately a year ago during a fight when she said she and Kate would not be going to his parent's home around the bay. The worker asked about any additional violence or instances where Mr. Snelgrove had been physical with her since the birth of the children. Ms. Butler advised that he had not been physical with her. The social worker's notes indicate as follows: "she advised that he is an excellent father, however, she has concerns to [sic] leave him alone by themselves. She advised that he does not pay as much attention to detail as she does. She reported that he can be watching TV and not paying attention to the children. She also reported that [sic] brushing the children's teeth, bathing he does not pay as much attention. She advised that if she leaves Norm she will want full custody of the children and expressed concern if Norm [sic] to have any custody".
39 On November 21, 2007 and December 5, 2007, Ms. Butler contacted the social worker and left messages regarding marriage counseling referrals, and also requested a an appointment with the social worker.
40 By this time, Ms. Butler had consulted with a lawyer, although when Mr. Snelgrove asked her if she had, she told him that she had not. Mr. Snelgrove learned from his secretary that at a recent office children's Christmas party, Ms. Butler had spoken negatively about him and their relationship, and indicated that when he returned from his scheduled business trip on December 13, 2007, she would be gone. Mr. Snelgrove testified that he found this hard to believe but other staff members also warned him that they had heard similar conversations.
41 Ms. Butler's mother had recently arrived for the Christmas visit and described the situation in the home tense and unpleasant.
42 Mr. Snelgrove canceled his business trip, sought legal advice and on December 14, 2007, filed an Originating Application and an Interim/Interlocutory application ex parte for a non-removal order. The court granted the ex parte non-removal order and set the matter for an inter parties hearing on December 17, 2007. He did not advise Ms. Butler that he had taken these steps, and she and her mother testified that they were shocked when the sheriff's officer arrived at the home and served the order.
43 Mr. Snelgrove testified about his thought process leading up to seeking the non-removal order. He knew that her temporary resident visa had expired and that she had recently given her notice to the music school where she had been teaching without advising him of her intention to do so. Her mother had arrived in Newfoundland and Labrador, and would be there to help her travel with the children. When her mother traveled she usually carried large amounts of cash as she had no credit card. He kept valuable documents in his office and when he checked, the birth certificates for the children were gone. He thought that Ms. Butler had taken the birth certificates because they were needed to arrange for British passports for the boys and that her mother had brought them with her. He thought back to the previous Christmas 2006 where there had been a ticket purchased for Kate and Ms. Butler to travel to England and realized that Kate must have a passport that he was unaware of. He knew that Ms. Butler was unhappy, had expressed her concerns about their relationship at his office Christmas party and had indicated that she and the children would not be in the home when he returned from his business trip to Halifax. He had no discussions with Ms. Butler about any of these concerns.
44 Ms. Butler and her mother were furious that he had been to Court and continually requested him to vacate the order. Ms. Butler assured him she had no plans to go anywhere. He testified that he told Ms. Butler and her mother that the non-removal order was a non-intrusive order and did not change anything if they were not planning to remove the children to England. Mrs. Butler testified she thought that the grandchildren would never be permitted to visit her and her husband in England. Despite the objections of Ms. Butler, an interim non-removal order was granted on December 17, 2007. This interim order also contained a further proviso that neither parent could apply for a passport for any of the infant children pending further order of the court.
45 On December 18, 2007, Ms. Butler contacted the social worker and advised that Mr. Snelgrove had a court order for non-removal of the children from the country. She advised the social worker that she does not wish to have Mr. Snelgrove take the children to visit his family as she is the caregiver for the babies. Ms. Butler advised that they are still interested in seeking counseling, and the social worker advised she would contact Mr. Snelgrove.
46 On December 19, 2007, social worker Bonnie Knight had an office visit with Mr. Snelgrove. Mr. Snelgrove confirmed that he had asked for a non-removal order to be in place as a safeguard so that Ms. Butler cannot remove the children from the country. He believes that she is doing an excellent job as a mother and recognizes the challenges in caring for the children all day long. He confirmed that the aggressive incident in July 2006 had occurred and acknowledged that he pushed Ms. Butler when Kate was a baby to remove her from her arms and advised that he had apologized for pushing her and recognized that it was wrong and inappropriate. He indicated that at no time did he ever threaten her or put his hands around her neck. He advised that he was willing to work on his relationship with his wife for the sake of the children and acknowledged that there was ongoing conflict as Ms. Butler did not want the children to spend time with his family. He also advised that Ms. Butler told him that she had sought legal advice and would be seeking a divorce.
47 There was a Snelgrove family wedding in St. John's on December 22, 2007. Mr. Snelgrove had invited his parents to stay with them when they came to town for the wedding until Christmas morning so they could spend time with the grandchildren. He was unaware that Ms. Butler had previously contacted his mother and advised her that she would appreciate it if they did not stay with them over the Christmas holiday as her mother was visiting from England.
48 On the day of the wedding, Ms. Butler and her mother were out together and Mr. Snelgrove was looking after the children. He packed up the children in the van and drove his parents to the wedding and returned home where he continued to look after the children. When his parents returned from the wedding and were waiting to go to the reception, he found out from them that they were not planning to stay the night as Ms. Butler had asked them not to stay. He was upset when he found this out because he had hoped that they would have some opportunity to spend some Christmas holiday time with their grandchildren. He convinced them to spend the night, and they planned to have a Christmas meal and open a few gifts with the grandchildren the next day before they went back around the bay. They all got up in the morning and Mrs. Snelgrove cooked the Christmas dinner and some other relatives arrived for the noonday meal. Mr. Snelgrove went upstairs to let Ms. Butler and her mother know that the Christmas meal was ready. They both declined to join the family for lunch indicating they were not hungry. Mr. Snelgrove indicated that he was embarrassed and took Kate down to join the family for dinner. He described it as a difficult situation.
49 After lunch he and his father put a lock on his office door in the basement as he had a number of legal documents related to his consultations on family law matters and he did not wish Ms. Butler to have access to them. His parents were very uncomfortable with the tense environment in the home and advised that they wished to leave immediately. He had not had time to wrap his Christmas gifts for the family around the bay, so his mother indicated to him that he should put them in green garbage bags and she would wrap and distribute them to his brothers and sisters and their children when she got home. Mrs. Snelgrove, Mrs. Butler, and Ms. Butler all confirmed this uncomfortable sequence of events in their testimony.
50 Ms. Butler and her mother went out that afternoon. Ms. Butler testified that she believes they went to the cinema. Mr. Snelgrove remained home to care for the three children. When Ms. Butler and her mother returned to the home in the early evening, Dylan was in a crib, Mr. Snelgrove and Kate were in the kitchen where he had gone to get her a bottle and Zack was on the living room floor alone. Ms. Butler testified that she found Zack chewing on a small card and confronted Mr. Snelgrove with respect to her concerns. Mr. Snelgrove defended himself and indicated that Zack was safe on the floor, not near anything and that he had gone to the kitchen for only a moment with Kate to get a bottle. He testified that Ms. Butler started yelling at him and calling him incompetent and said that he couldn't even look after her children. He kept asking to see the card, and she finally showed it to him and there was a small piece of the card missing. He testified that he thought back to a comment that his lawyer had made with respect to the current situation after the court appearance earlier in the week. He said the lawyer suggested to him that he should watch himself as Ms. Butler and her mother may try to "set him up". He said at this point he smiled, laughed and blew Ms. Butler a kiss as he thought to himself "this is the start of the setup". Ms. Butler got angry, and her mother, according to Mr. Snelgrove started criticizing him as well. He told Ms. Butler that he wanted her mother out of the house. He went downstairs to phone his parents and Ms. Butler wanted the phone to call the police. He did not get through to his parents and Ms. Butler did call the police who arrived shortly thereafter.
51 Ms. Butler and her mother both testified as to the events leading up to the calling of the police and described the events in a similar manner to that of Mr. Snelgrove, although Mrs. Butler Sr. indicates that she did not raise her voice but only said, "that's not funny, Norm" when he smiled and blew Ms. Butler a kiss. Ms. Butler describes being upset and angry when she returned and was concerned about the safety of Zack being left alone in the living room and was worried that he could have choked on the card. She did admit under cross examination that the child was in no distress and that she had not seen him chew the card and that there were no pieces of card in his mouth. She was upset with the way Mr. Snelgrove was speaking to her and her mother and when he said he wanted her mother out she asked him if he would get out and he said he would not. She said he had the portable phone in his pocket and he went downstairs. She went downstairs and used the land line in his office to call the police to take her to Kirby House. She testified that she had previously called Kirby House and was advised they could handle her and the three children. Her mother was upstairs with the children.
52 The police report indicated that the police responded to the family home at 9:14 p.m. on December 23, 2007. According to the police report, Ms. Butler told the police that she is suffering from emotional abuse, that she is from England, a temporary resident, doesn't have a visa or a job, has no form of income, doesn't drive, and doesn't have any family or friends in Newfoundland and Labrador and that her mother is here for vacation. She thinks her husband has anger problems. The police officers accompanied Ms. Butler, her mother and the three children to Iris Kirby Transition House upon her request.
53 Ms. Butler said when the police arrived they interviewed her and Mr. Snelgrove separately about what had occurred. The police then talked to both of them together and suggested a 24-hour cooling off period and asked if either of them was willing to leave. She said Mr. Snelgrove offered to leave so she and the children could remain but only if her mother left the house. Ms. Butler felt that was not fair to her mother so she insisted that they wanted to go to Kirby House. Mr. Snelgrove, in his testimony, confirmed the conversation with the police, and also indicated that when the police were advised that Mrs. Butler did not live in the home, they told him they could remove her, if asked. Mr. Snelgrove confirmed that he was willing to leave the home for a cooling off period but only if Mrs. Butler left the home. Ms. Butler indicated she would only stay in the home if her mother was permitted to stay. Mr. Snelgrove ended up driving all three children to Kirby house while the police drove Ms. Butler and her mother as the police vehicles were not equipped with sufficient car seats to transport the children. Mr. Snelgrove indicated that he thought that this was for a 24 hour period.
54 The family was admitted to Iris Kirby house late on the night of December 23, 2007 and the social worker, Bonnie Knight, received the referral from Iris Kirby House and the police early the next morning. She contacted Mr. Snelgrove who advised what had happened the previous evening. He described Ms. Butler and her mother yelling and screaming at him with respect to his incompetence and that he could not handle the children. He advised that he was laughing during this incident and advised that Ms. Butler had called the police. He described the scene as reasonably calm. He advised that he wanted Ms. Butler's mother out of the house. He agreed to leave the home so Ms. Butler could stay there with the children but insisted that her mother leave. She decided to go to Iris Kirby House with her mother, and that he had not heard from her since. The social worker also made telephone contact with Ms. Butler at Iris Kirby House, who described the incident similarly and indicated that he was "taking steps to get her mother chucked out of the home". She confirmed that Mr. Snelgrove advised her that she and the children could remain in the home as long as her mother left, but she felt she was forced to go to Iris Kirby House as there was no other option. She indicated that her mother would be in St John's for another 10 nights.
55 The social worker's notes indicate that Ms. Knight spoke to Ms. Butler on December 24, 2007, about Christmas access with the children for Mr. Snelgrove and advised that Child, Youth and Family Services are comfortable with him caring for the children as they had no reason to believe he would place the children at risk. Ms. Butler indicated that she did not completely agree and Ms. Knight's notes indicate that she talked to Ms. Butler about allowing him access to the children alone in the past and during the past week. The social worker's notes indicate that she advised Ms. Butler that she would follow up and consult with her supervisor. Following the consultation with her supervisor, Ms. Knight called Ms. Butler again and advised that they were comfortable with Mr. Snelgrove caring for the children alone. Ms. Butler advised she would contact the on-call worker if anything else was required. The social worker also advised staff at Iris Kirby House that this was a private custody issue. The social worker also contacted Mr. Snelgrove that morning and advised of the consult with the supervisor and their view with respect to his access to the children and advised Mr. Snelgrove to call the on-call worker if needed.
56 On December 24, 2007, at 5:30 p.m. the on-call social worker received a call from a person (whose name was redacted from the social worker's notes) indicating that Ms. Butler had entered Iris Kirby House last night with her three children and left today to go to a friend's cabin in Whitbourne which Ms. Butler described as her "short-term shelter". The referral source reported that Bonnie Knight is the assigned social worker, and she is not aware that the family has left Iris Kirby House. On December 25, 2007, at 5:50 p.m. Bonnie Knight reported that a voicemail was left by Mr. Snelgrove regarding access to his children. He advised that he has not had access to the children and does not know their whereabouts. Ms. Knight was not in the office to retrieve the voice mail until January 3, 2008.
57 On January 3, 2008, Ms. Knight's notes indicate that she called Mr. Snelgrove regarding the voicemail he had left and the status of the children. Her notes indicate that he told her that he last spoke to Ms. Butler on December 28, 2007, when she called to ask if she and her mother could move into the home and for him to move out. Mr. Snelgrove advised that her mother could not move back into the home, however, she and the children could return. He told the social worker he had called the UK to speak to Ms. Butler's father, who told him that he had been speaking to Ms. Butler but he did not have a phone number for her. Mr. Snelgrove also indicated that he had taken a copy of the non-removal order to the airport. Mr. Snelgrove told the social worker he does not have concerns for the safety of the children while in their mother's care. He is concerned as to the whereabouts of the children and he would like to see them. He provided the social worker with his parents' contact information as collaterals and also advised that he had been in contact with the Royal Newfoundland Constabulary (RNC) but had not filed a missing persons report at this time. He advised the social worker that Ms. Butler would likely be in touch tonight as her mother leaves for the UK at 5:30 p.m. Ms. Butler and the children returned home on the evening of January 3, 2008, once her mother departed for the UK.
58 Ms. Butler testified that after arriving at Iris Kirby House and spending the night, she and her mother decided that it was not a suitable place to stay as there were too many stairs to go up and down and also it was difficult to get any sleep as they had to share a room. She contacted a friend who invited them to stay at her home, but she did not wish to intrude upon another family at Christmas so they accepted the offer to stay at these friends' cabin at Whitbourne. She and her mother and the children remained there for approximately 4 days. She described the accommodations as rudimentary, and testified that they all slept in the living room with the children using their car seats as beds. She confirmed that she contacted Mr. Snelgrove about December 28, 2007 and asked if he would leave the house so they could return home and confirmed that he indicated that her mother was not welcome. She also indicated that she contacted the police to see if she might be charged with kidnapping, and also contacted Legal Aid. At this point she contacted another friend and they all moved to St John's for the next four or five days with this family but she did not advise Mr. Snelgrove as to their whereabouts at any time. She advised that she returned home on January 3, 2008, after her mother departed for the UK. She testified that she did not intend to prevent Mr. Snelgrove from seeing the children over Christmas but when he insisted that her mother was not welcome in the home, she felt she had no other choice.
59 The social worker, Bonnie Knight contacted Ms. Butler on January 4, 2008 and she confirmed the information previously outlined and indicated that since coming home she and Mr. Snelgrove have had minimal contact and avoided any conflict. Ms. Butler advised that she has no concerns with respect to her safety or the children. She indicated that she had sought legal advice and would be seeking a divorce. The social worker completed a home visit that same day, and no concerns were noted. Ms. Butler began to discuss the legal matters between her and Mr. Snelgrove and the social worker advised Ms. Butler that she could not provide any advice on custody and access issues, and that Ms. Butler should continue to consult with her legal representative. Ms. Butler indicated that she had developed friendships in the neighborhood and if she needed any help she would contact them. Ms. Butler indicated to the social worker that she does not believe that Mr. Snelgrove will be aggressive in the home given Child, Youth and Family Services involvement.
60 From January 2008 until September 30, 2008, Mr. Snelgrove and Ms. Butler continued to reside together with their three children. During this time, each was seeking legal advice and both characterized their relationship as separated but in the same house. They continued to share the care of the three children, and continued to have disagreements with respect to financial issues, childcare issues and the children's visitation with his parents. Ms. Butler continued to provide care for the children during the day with Mr. Snelgrove assisting when he came home from work. He cleaned up after supper, washed the dishes and cleaned bottles and prepared formula for the 21 bottles required for the next day, assisted with bathing and changing the three children and getting them ready for bed. There was considerable stress and tension around the feeding of the children in the middle of the night. For a period of time Ms. Butler took the view that if Mr. Snelgrove wanted custody of the children she would show him what custody was like and refused to get up with the twins during the night when they were feeding about every two hours. Mr. Snelgrove complained that it was very difficult for him to go to work in the morning when he had been up so often during the night. Social worker, Ms. Knight assisted the parties and made a suggestion that one of them look after the boys until 4 a.m. and the other takeover at 4 a.m. On the weekends, Mr. Snelgrove testified that he got up in the early morning with the boys, fed and changed them and put them back to bed and then took Kate out for a period of time, allowing Ms. Butler to sleep in.
61 Ms. Butler had a number of complaints about the deteriorating relationship and her feeling of isolation and loneliness while at home all day with the three babies. She was no longer working and had only the child tax benefit as income. She was dependent on Mr. Snelgrove for transportation as she did not drive. He continued to ask and she continued to resist him taking the children to visit their grandparents around the bay. He and the children had not seen his parents since January, and after consultation with legal counsel, he took Kate one Saturday morning in March 2008 to visit his parents. He called Ms. Butler to let her know that he was on his way. She became very upset and called both his sister and his mother, indicating that she was contacting the police and/or taking a taxi to retrieve Kate herself. Mrs. Snelgrove testified that when she took the call, she advised Ms. Butler to do whatever she wished. Ms. Butler indicated that she did not like the children to visit the grandparents home as there were ornaments around, that she was concerned that the house was not properly child-proofed and also that there was a dog, and she was concerned the children might be harmed. Mrs. Snelgrove testified that she had raised five children and there were no safety issues with the children visiting in her home. She did not pick up all the ornaments but rather taught the children not to touch and while the dog would bark at first when the children arrived, as he did not know them, they put him in the basement until he quieted down. When he came up later he lay down and didn't bother anyone. She indicated that the dog was part of their family and was very gentle and she was very comfortable that he would not hurt the children.
62 Ms. Butler called the social worker regarding the visit that Mr. Snelgrove had made to his parents home and expressed concern for her daughter's safety but could not provide any protection concerns when Mr. Snelgrove is caring for the children. She wanted them to make Mr. Snelgrove return the child. Child, Youth and Family Services declined to intervene.
63 When Mr. Snelgrove returned from this visit, Ms. Butler put a calendar in front of him and said she wanted to know in advance when he would be visiting his parents and asked him to circle the times he wanted to take the children. He circled every second weekend and has been doing so ever since.
64 Social worker Caroline Garland took over the file from Bonnie Knight in January 2008. She made several home visits, and responded each time Ms. Butler called and asked for assistance. Ms. Butler indicated that she contacted the social worker as she had no one else to turn to for advice. She also advised that she felt trapped and had no independent financial means and complained that Mr. Snelgrove had cut off her internet access. She also indicated that Mr. Snelgrove was attempting to get her to use the child tax benefit money to buy the formula for the babies and was hiding formula in the locked office in the basement to force her to use the child tax benefit money. She also indicated that he locked her out of the house.
65 On March 24, 2008, Ms. Garland made an unscheduled home visit. She found Kate in bed and both Dylan and Zack awake and playing on the floor in the family room. Ms. Butler was folding laundry and Mr. Snelgrove was on the floor with the boys opening the mail. The social worker's notes indicated that she told them she had stopped by to check to see how things were going and both reported there had been no progress in the divorce and neither had heard from their lawyers. The social worker discussed the issue of the computer internet connection and Mr. Snelgrove confirmed that it was currently not working and that he was in the process of having it fixed. The social worker noted that if indeed he was attempting to restrict Ms. Butler's access this would be inappropriate behavior, and she asked that they come to an agreement on getting this computer fixed. Ms. Garland again raised her concerns with respect to the tension and potential for conflict when both parents are living together in the home while dealing with divorce proceedings and the unhealthy environment this can create for the family. Neither parent was willing to move out of home. They also discussed Ms. Butler's concern that Mr. Snelgrove was hiding formula. Mr. Snelgrove denied intentionally hiding the supplies and indicated that he kept some extra formula behind a chair in the basement so that when they unexpectedly ran out he did not have to go out in the middle of the night to buy formula. He indicated that this had happened several times in the past. Mr. Snelgove also indicated that Ms. Butler frequently misplaced her keys or forgot them when she went out and consequently the patio door was usually left unlocked so that she would be able to get in.
66 Ms. Butler also alleged that Mr. Snelgrove locked his office door and that she could not use the phone or have computer access unless he was home. Mr. Snelgrove indicated that he did receive a call at his office one day asking him to come home immediately. Ms. Butler had placed the call on a cell phone to him but she had run out of minutes on the phone. He arrived home to find that the phone in his office was not put back on the cradle correctly and therefore the portable phones upstairs were not working. He put the phone back on the cradle and the line was fine. He testified this is the only time that phone access was a problem and was accidental and fixed immediately. Ms Snelgrove did not provide evidence as to any other incidents.
67 Mr. Snelgrove also indicated that he had looked at ways to cut expenses as they were now a family of 5 living on his income which at the time was approximately $65,000. One of the measures taken did include stopping internet access but he did agree to reinstate the access when Ms. Butler agreed to pay for half the bill out of her child tax benefit money. He indicated he was paying all other expenses at this time and was finding himself short each month. His financial records demonstrated this shortfall. Internet access was restored although Ms. Butler did not pay for half. The lack of internet access was for a period of about one month, February 2008, and there was no interruption in the long distance telephone package. Ms. Butler testified that she talked with her mother almost daily.
68 On April 28, 2008, Ms. Butler reported to Ms. Garland that things had been going well with herself and Mr. Snelgrove since the social worker's last visit. She did note that Mr. Snelgrove had been away for work last week, and that the boys had been sick with a respiratory infection and she felt he should stay home. She enlisted the help of her housekeeper at this time to help her with the inhalation medication and also to drive her to the Janeway for a further check up. Mr. Snelgrove had arranged to leave the keys for the van so that the housekeeper could drive Ms. Butler if necessary. Ms. Butler suggested to the social worker that not much progress had been made with respect to the separation and divorce. She reported that when she spoke with Mr. Snelgrove's lawyer, it was suggested that she should get a work visa, a job and put the children in day care to assist with the tight finances. The social worker advised Ms. Butler that these were custodial issues and that she could not advise on them. A further unscheduled home visit was completed on May 22, 2008. No issues of concern were noted. Ms. Butler indicated that the two lawyers have been discussing the possible sale of the house, and she and Mr. Snelgrove have been civil lately, and there have been no disagreements.
69 On August 4, 2008, Ms. Butler filed a formal response to the originating application filed by Mr. Snelgrove in December 2007 for the non-removal order. In her response she contested the non-removal of the children from the jurisdiction and further sought the following relief: divorce, sole custody, relocation to the UK with the children, child support, spousal support, equal division of all matrimonial property, including a one half interest in the equity in the matrimonial home, and costs. At that time, she also sought leave, which was granted, to bring an interim/interlocutory application for exclusive possession of the matrimonial home, interim custody, child support and spousal support. Mr. Snelgrove testified that he was surprised when served with the request for the exclusive possession order of the house because he felt that they had had a good summer together and that the relationship issues were manageable.
70 On September 29, 2008, the court ordered that Ms. Butler would have exclusive possession of the matrimonial home; that Mr. Snelgrove and Ms. Butler would have interim joint custody with the primary residence of the children being with Ms. Butler on an interim basis with reasonable access to Mr. Snelgrove on reasonable notice; and that Mr. Snelgrove pay interim child support in the amount of $1283 per month commencing October 1, 2008.
71 Mr. Snelgrove moved out immediately and found some temporary accommodations with family members but when he went back to the home the next day to retrieve some of his belongings, he discovered that Ms. Butler had cut off the lock on his office door and a number of his personal legal and financial papers, along with important personal mementos were missing including a framed copy of an ultrasound picture which was on his desk. Ms. Butler confirms that she did cut the lock off the office door, but denies taking the ultrasound picture from the office. Some of the financial documents under discussion have been attached to Ms. Butler's pleadings.
72 Mr. Snelgrove parented the children every day after work from 4:30 to 7:00 p.m. following the exclusive possession order as well as taking them to his parent's home every second weekend from Saturday morning until Sunday evening. On the weekends that Mr. Snelgrove did not have the children overnight, he had access with them for four hours on each of Saturday and Sunday.
73 Mr. Snelgrove filed an interim/interlocutory application on December 1, 2008, to deal with Christmas access and parenting. In his affidavit he indicated that he wished to have scheduled access as he was finding it difficult to develop a plan with Ms. Butler. He explained it was especially difficult to negotiate which four hour period he may have on the weekends. It changed from time to time and he could not make plans to do things with the children or schedule his own activities. He provided an example of the difficulty experienced when Ms. Butler wanted to take Kate to the Santa Claus Parade during his scheduled time with the children. They agreed that she would take Kate to the parade and after the parade he would take all of the children together to his home for visits with his parents who were in town. When Ms. Butler returned from the parade she would not permit the children to leave with him. He was also looking for two overnights on the weekend that he had the children and continued daily access.
74 Ms. Butler disagreed with increasing access for Mr. Snelgrove, and also requested that she retain discretion to determine whether he should be permitted to take the children around the bay to visit his parents. She further indicated that he had a short fuse and she was worried that he may have anger management issues. She advised, in her affidavit that she saw no need to change the interim order, which provided for reasonable access on reasonable notice.
75 Mr. Snelgrove disagreed that he had anger management issues and in his affidavit indicated that through his EAP program a consultation with a psychologist, Elaine Kufudi had been arranged. He argued for a schedule of access because discretionary access with Ms. Butler in control was not providing him appropriate time with their children.
76 Ms. Elaine Kufudi, a registered psychologist since May 1991 gave evidence at this hearing with respect to her assessment of Mr. Snelgrove. She saw him five times between October 27, 2008 and December 20, 2008. She testified that Mr. Snelgrove indicated that his purpose for seeing her was that Ms. Butler believed he had an anger management issue and that he had agreed to have this assessed to put it to rest as he felt it was being used against him as he sought to spend more time with his children. He had also advised the social worker who was dealing with the family that he would have an assessment. Ms. Kufudi's assessment concluded that there were no anger management issues associated with her observations and testing of Mr. Snelgrove. She described her observations, including an unanticipated telephone interaction between the parties where she overheard both sides of the conversation and described both parties as reasonable. She also indicated that she had deliberately canceled a session on short notice with Mr. Snelgrove to gauge his reaction. She also described numerous scenarios that she used to elicit and uncover underlying temper or anger issues. She concluded that Mr. Snelgrove was upset by the breakdown of his relationship and working hard to maintain a positive parenting relationship with his children. Ms. Kufudi described Mr. Snelgrove as a willing, pleasant, articulate individual with lots of self-control. No further sessions beyond the five originally scheduled were needed in Ms. Kufudi's opinion as they had reached the goals set out at the beginning of the process.
77 Following a hearing, an interim parenting order was filed on December 19, 2008, which provided for Mr. Snelgrove to have daily access from 4:30 p.m. to 7:00 p.m. and every second weekend from Friday at 4:30 p.m. to 7:00 p.m. on Sunday. On the alternate weekends, Mr. Snelgrove was to have access to the children from 9:00 a.m. to 1:00 p.m. daily on Saturday and Sunday and such further and other access as may be agreed between the parties. The other issue addressed at this interim hearing was a Christmas access schedule which provided for, among other things, Ms. Butler and Kate to travel to the UK from December 25, 2008, until January 11, 2009, while Mr. Snelgrove would parent Dylan and Zack until Ms. Butler's return from the UK.
78 After the exclusive possession order was put in place, there were a number of times during 2008 and 2009 when for a variety of reasons Ms. Butler invited Mr. Snelgrove to occupy the home with her. Mr. Snelgrove lived in the home from November 13-22, 2008, when the boys were ill and Ms. Butler needed assistance and again for an overnight stay on November 29, 2008. He also stayed at Ms. Butler's residence to assist with the care of the children for two days in January, nine days in March, five days in April, five days in May, three days in June and one day in July, 2009 (the details associated with the exact dates in each of these months is found in Mr. Snelgrove's volume of documents filed with the court.) Ms. Butler did not take issue with these assertions.
79 Mr. Snelgrove also provided full-time care for one or more of the children for a number of periods of time during 2009, outside of his scheduled parenting time including 18 consecutive days during December 2008 and January 2009, 21 consecutive days during May and June 2009, 17 consecutive days during August 2009, five consecutive days in October 2009 during periods of time when Ms. Butler was either in the UK with one or two of the children or during the period of time when she vacationed in the UK or in Edmonton on her own. Mr. Snelgrove's documentation filed with the court during this hearing for the period January 1, 2009 to December 31, 2009, shows that he had primary care, including overnights for one or more of the children for 118 days, along with the additional 25 days during which he resided with Ms. Butler to assist in the care of the children. During the time that Mr. Snelgrove was working he had the assistance of his parents. Ms. Butler did not contest these facts.
80 After the matrimonial home was sold in April 2009, each of the parents acquired their own residence. Mr. Snelgrove purchased a house in Mount Pearl, while Ms. Butler rented a house in downtown St. John's. Mr. Snelgrove continued to see the children every day after work from 4:30 p.m. until 7:00 p.m. Both parents described some logistical issues with respect to this schedule. It takes Mr. Snelgrove some time, approximately 20 minutes depending on traffic, to get to Ms. Butler's home to pick up the children and then again the same period back to his home in Mount Pearl. The children frequently fall asleep in the vehicle on the drive to Mount Pearl and often only wake up in time to have a hurried supper before they return to their mother's home. Ms. Butler says that when the children return from the visits with their father they have sometimes not had their supper, may be cranky and irritable on changeover and are often late getting home closer to 7:30 p.m. Mr. Snelgrove agreed with these comments indicating that when the children wake up from a nap, it is often hard to get them to eat their supper right away, but that he has packed up their supper and sent it home with them. He agrees that he is occasionally late in that packing up the three children and all of their supplies and the occasional trip back to the house to use the washroom causes him to be late. He also states that his time with them is very short. Ms. Butler has recently begun to feed the children their supper prior to their pickup, but Mr. Snelgrove does not appreciate this as it deprives him of his opportunity to sit and have a meal with the children.
81 Child, Youth and Family Services did not have involvement with this family during 2009 until September 9, 2009, when they responded to a call from Mr. Snelgrove. He indicated that he was concerned about Kate's emotional well-being, and indicated that within the last month, Kate had been very tearful when she was being returned to her mother's home after visits with him. He described a recent drop off when Kate had asked to stay with him for a bit longer after dropping off the boys and Ms. Butler had said no because she needed to get ready for bed. He described Kate as crying so hard that she was nearly hysterical and that Ms. Butler held her by the shoulders and said, "tell me you missed mommy". He indicated that he dropped the two boys off and took Kate without permission and went to Quidi Vidi Lake to feed the ducks and to his sister's for milk and cookies to try to calm her down before he took her home.
82 The social worker assigned to follow up on Mr. Snelgrove's concern was Ms. Symes. She contacted Ms. Butler by telephone because she had made several attempts to visit Ms. Butler at her home but each time but no one answered the door. Ms. Butler testified that she did not answer the door because she didn't recognize the person and assumed it might have been someone selling something. She indicated that she was used to seeing Ms. Garland, and would have answered the door, if she had known that this worker was there on behalf of Ms. Garland. The social worker's notes indicate that Ms. Butler told her on the telephone that after Mr. Snelgrove left with Kate and she was unable to reach Mr. Snelgrove on his cell phone, she called the RNC, who came to her home at approximately 8:50 p.m. and left shortly thereafter to look for Mr. Snelgrove and Kate. Ms. Butler advised that shortly after the RNC left Mr. Snelgrove returned with Kate at around 9:00 p.m. Ms. Butler did confirm that Kate had been upset, but she did not think it was fair for Mr. Snelgrove to spend extra time with Kate when they have two other children. The social worker indicated that she would like to meet with Ms. Butler and also see Kate. Ms. Butler agreed with an appointment for 9:30 the following morning.
83 When the social worker visited the home the next day, Ms. Butler advised that Kate does cry and gets upset sometimes when she's returned from her visits with her father but Ms. Butler believes this is partly Mr. Snelgrove's fault as he sometimes asks if he can spend more time with Kate. Ms. Butler told the social worker that Mr. Snelgrove sometimes gives Kate more attention than the boys, which Kate enjoys, however, when they are with her she has to divide her attention equally between the three children. Ms. Butler advised this social worker that she wants to return to the UK with the children, but Mr. Snelgrove is opposed. Ms. Butler advised the social worker that when they lived together Mr. Snelgrove was verbally aggressive towards her. Ms. Butler stated that she was not concerned about the children in Mr. Snelgrove's care as he was never aggressive with the children and has lots of support from his parents. The social worker's notes indicated that she discussed what Ms. Butler does with the children during the day and there was an exploration of the difficulties that Ms. Butler is facing because she does not drive. The worker asked about drop-in playgroups in the area and Ms. Butler advised there were some but that she finds it too difficult to get the children there. The social worker offered bus passes to Ms. Butler if it was a concern, however, Ms. Butler explained she did not need financial support as she gets this from Mr. Snelgrove and that he is available to drive her places when she needs to go. The social worker observed the home environment for the children, including the various areas where the children played. The social worker talked with Kate, who indicated that she played in the play room a lot and that she read books and did crafts with her brothers and her mom. The social worker advised Ms. Butler that she did not see any concerns.
84 The social worker contacted Mr. Snelgrove and advised that Kate was observed to be a happy and friendly girl and she noted no protection concerns. Mr. Snelgrove indicated that he knew there were no protection concerns but that Kate is still upset during transitions. The social worker advised Mr. Snelgrove that this type of behavior is common for children of this age, when they have to leave one parent to go home to the other. She and Mr. Snelgrove discussed ways and means to make the transition between parents easier for Kate. The social worker's notes indicate the couple have had difficulties with custody and access in the past and queries whether the referral may be of a malicious nature but draws no conclusion. Both parents have noted that Kate wishes to have some alone time with each of them out of the company of her brothers who because of their age and activity levels require constant supervision. They have adjusted the access schedule recently to accommodate each of them having some special time with Kate.
85 The next involvement of Child, Youth and Family Services occurred on October 16, 2009, when Ms. Butler advised that Kate had returned from an overnight with her dad and had a smell in her hair. Ms. Butler advised that at first she could not identify the smell, but then realized it smelled like "her husband's groin". Ms. Garland, social worker attended at the home where Ms. Butler indicated that she had no concerns with respect to Mr. Snelgrove and Kate, but that she observed the smell in Kate's hair and thought that she should seek some advice. The social worker, as well as another social worker who was present, interviewed Kate separately from her mother. They discussed general topics, visits with dad, what games they played, the importance of telling the truth and good touches and bad touches. The social workers indicated they had no concerns following this interview. Ms. Butler was advised that if she remained concerned she should take Kate to her doctor. The social worker advised that if the doctor was concerned they should contact the RNC. This information was faxed to the RNC and after further consultation with the doctor and RNC both determined no further action was required. Ms. Butler was advised to be protective and once again, Ms. Butler indicated that she does not believe Mr. Snelgrove had done anything inappropriate. The social worker testified that she did smell something in Kate's hair and the social worker's notes indicate that the doctor described the smell as "like sweat".
86 Ms. Butler did not take any action following this incident to reduce or change Mr. Snelgrove's access, nor did she or anyone else advise him that the referral had taken place. This issue was raised at trial by Ms. Butler she said, not because of any concerns she had, but because it was contained in the social worker's notes. Mr. Snelgrove found out about this for the first time during the course of the trial. He called it "a pile of rubbish". He testified that at no time had his behavior been anything but appropriate with Kate and this was not challenged by Ms. Butler in any way. He indicated that Ms. Butler had asked for Kate to stay over with him on October 15, 2009. Mr. Snelgrove said Kate was really ill that night running a high fever, perspiring and coughing and was up most of the night. When he dropped her back to Ms. Butler's house in the morning, he advised her that he thought she should take Kate to Dr. Kennedy. Dr. Kennedy prescribed medication for her, but Ms. Butler left the prescription unfilled when she went to Branch for the weekend. He said he believes that Ms. Butler made this complaint to get back at him for his referral the previous month to Child, Youth and Family Services. There were no further referrals, incidents or visitations described in the Child, Youth and Family Services notes.
ISSUES:
87 The two issues which are to b
e determined in this matter are:
1)
what custody and access regime or parenting plan is in the best interests of the children, and
2)
whether it is in the children's best interests to relocate from Newfoundland and Labrador to the United Kingdom with their mother.
POSITIONS OF THE PARTIES:
Mother's position
88 Ms. Butler seeks sole custody of the children and has requested permission of the court to relocate to the UK with the children as she believes this arrangement would be in the best interests of the children. Ms. Butler testified that she has a limited social network in St. John's and no family support here. She is not a Canadian citizen and her ability to remain permanently in Canada or to obtain a work permit is uncertain. She says she is financially reliant on Mr. Snelgrove and the Canadian government's benefits for children. She states that without a degree in education, even if she were legally permitted to work in Newfoundland and Labrador, she is unable to teach in schools. She is only qualified to teach music students privately, which would result in her having to work after school hours and on Saturdays, should she remain. Ms. Butler indicates there is no other work or career that she is interested in pursuing in St. John's.
89 Ms. Butler wishes to obtain meaningful daytime employment in her area of expertise and training. Ms. Butler asserts that there is a much wider job market for piano teachers in the United Kingdom and that she intends to complete a graduate teaching program (GTP) upon her return to the UK in order to qualify her to have a regular teaching job in a school teaching primary children. This program could be completed within a year and would allow Ms. Butler to obtain a job with full benefits including a pension. Ms. Butler says that she may also be eligible for significant mortgage assistance if she obtains work in locations which have government supported schemes for key-workers, including teachers.
90 Ms. Butler does not have a driver's license and says she relies on public transportation and friends, as well as Mr. Snelgrove to assist her with everyday chores such as taking the children to the doctor or getting groceries. She also states she has no family and a few close friends to assist her with providing support in caring for the children. Ms. Butler says, the UK public transportation system is better and also she could be closer to her parents so that she could have family support and assistance with the children.
91 Ms. Butler says that she feels isolated in Newfoundland and Labrador and that she is not happy here and it is not in the best interests of the children to remain here. She describes Mr. Snelgrove as controlling, aggressive and a bully and says he does not like to agree with her. Ms. Butler says she seeks sole legal custody regardless of whether they live in St. John's or the UK. Ms. Butler says she is acting in the best interests of the children and that she does not wish to be reliant on Mr. Snelgrove, his family, welfare, or the kindness of strangers. She cannot contemplate remaining here. Her parenting plan for the children which will be discussed in more detail later is child centered and child focused and she notes that her interests and her well-being will benefit her children.
92 When asked in cross-examination why sole custody and relocation would be in the best interests of the children, she indicated that she and Mr. Snelgrove do not work well together as a team and they have many disagreements and that their toxic relationship and litigation do not benefit the children. When pressed, she could not give any examples as to how the difficult relationship between herself and Mr. Snelgrove had impacted the children. She did give examples, however, as to disagreements she and Mr. Snelgrove had with respect to finances, visitation with his parents, access times, and his desire for her to apply for permanent residency status and/or a work visa.
93 When asked in cross-examination about opportunities for work or education in Newfoundland and Labrador, she indicated that she had some website material from Memorial University, and that it would take her four semesters to obtain a primary education degree if her music degree from the UK was considered a previous acceptable degree. As to whether her music degree was acceptable, she indicated she did not check on her credits nor did she follow up with respect to any educational opportunities at Memorial because she does not wish to study here. She also indicated it would be a costly venture as she would have to pay foreign student tuition rates. She has not applied for either a temporary work or study visa or for permanent resident status as she does not wish to remain in Newfoundland and Labrador. She does not have a current resume.
94 When asked in cross-examination as to how she felt the children would react if they do not see their father every day as they do now, she said her proposal was that the children would spend summer vacation and some school vacations with their father by traveling to Canada and that they would continue to have daily access to their father through webcam or telephone. When asked how she thought webcam access and telephone access with their father would be sufficient for the children to maintain a positive relationship when she had described her own daily telephone access and web cam access with her parents as leaving her feeling isolated, she indicated that the children would not feel isolated as they would have friends and family in the UK. She also said that with his education as a chartered accountant Mr. Snelgrove could relocate to the UK and find work there quite easily. Ms. Butler indicated that she felt this move was in the children's best interests as it would make life better by improving her financial independence and that her well-being affects the children. She further indicated that she believes putting distance between the parents is a good thing and that she would have more support in the UK.
95 Ms. Butler agreed on cross-examination that she has no concrete plans for her move to the UK. She has not applied to the GTP program because she said she must be a resident in the UK in order to make an application. She cannot apply to a school to teach piano because she needs to be resident in the UK. She does say that she believes there are many opportunities available and provided some job ads from the UK websites. She does not know, at this point, where she might reside as she does not know which program or which school she may be teaching in. She says she and the children could reside in her parent's home at Stockton-on-Tees, some 250 miles north of London, until she finds her feet.
96 Ms. Butler, in cross-examination, indicated that she has had some assistance from Jamie Parkinson in developing her parenting plan and her career planning. Mr. Parkinson is a science teacher in a high school in the London area in the UK. Ms. Butler first met Mr. Parkinson online in May 2009 when he was living in Alberta. Ms. Butler described the online site as a chat room for UK residents living in Canada. She described him as a boyfriend and said that this was a long-distance relationship in the early stages. He has since relocated to the UK, and they have had an opportunity to vacation together both in the UK in August 2009 for two weeks and in October 2009 for a week in Alberta. She says he is not the reason that she wishes to relocate to the UK and that her desire to relocate preceded her relationship with Mr. Parkinson and she does not know what will happen in the future regarding their relationship.
Father's Position
97 Mr. Snelgrove opposes Ms. Butler's relocation application to the UK as he believes it is not in the children's best interests to leave Newfoundland and Labrador. He takes the position that should Ms. Butler leave to pursue interests in the UK, he seeks sole custody of the children and his parenting plan proposes generous access to Ms. Butler in the UK through a similar proposal to that of Ms. Butler for school holiday vacations and sharing of Christmas and Easter in the UK. Mr. Snelgrove takes the view that this would optimize the opportunity for the children to spend time with Ms. Butler as she would be on vacation herself during these times if she obtained employment as a teacher in the UK school system. He points out that the opposite would be true for visitation of the children with him in Newfoundland and Labrador if relocation were allowed as he would be working full-time and only gets three weeks of annual vacation, thereby necessitating the children being in daycare while exercising access with him in this province.
98 Mr. Snelgrove's preferred position is that of joint legal custody with Ms. Butler and an equal shared parenting arrangement. Mr. Snelgrove states that he has actively participated in the care of and has continued to spend substantial time with the children since his physical separation from their mother. He states that Ms. Butler has continued to try to minimize the amount of time that he or his family spends with the children and that this does not bode well for her stated intent to foster and promote access between the children and their father if she is permitted to relocate with them to the UK. Mr. Snelgrove states that these are very young children who have the benefit of regular and frequent physical interaction and parenting by both their parents living in the same city at the present time, and he believes that it is in their best interests that this shared parenting arrangement continues. He believes that telephone contact and webcam access are not appropriate substitutes for physical parenting, and lengthy periods of separation from one parent over substantial periods of time is contrary to the best interests of young children. Mr. Snelgrove is afraid that if the children move away at such a young age that they may not even remember him. He says he can't remember what it was like before kindergarten, and he's thinking that if they left now they may not even remember the times they've had together. He does not believe there is any pressing need for Ms. Butler to relocate to the UK as she has not resided there for a considerable period of time and that she has no immediate plans to seek employment when she returns to the UK. He notes that she left her family home in 1993 to pursue her education and employment opportunities and as an only child, has no siblings and, other than her parents and a grandparent who she sees from time to time, has few ties with the UK. Mr. Snelgrove indicates a strong desire to continue to see his children on a daily basis and to parent them as frequently as possible. He does not believe it is in their best interests to be separated from either parent and he hopes that Ms. Butler would remain in St. John's.
99 Mr. Snelgrove also has a new relationship. He met and began dating Beverley Mitchell, a registered nurse at the Janeway in early October 2009. They do not live together and have no specific future plans. She has met the children as well as Mr. Snelgrove's family. Mr. Snelgrove indicates that he spends a considerable amount of time with Ms. Mitchell when he is off work, and she has days off. She is often at his home for supper and spends time with him on the weekends. She is comfortable with the children and they seem to enjoy her company. She has been introduced to the children as "Norm's friend Bev".
100 Ms. Mitchell testified at the trial and described Mr. Snelgrove as a kind and caring person who was very good to her in their relationship. She testified that she has seen no anger management issues and that he is very appropriate and good with the children. She described each child's personality and indicated they each have their own interests. She described Mr. Snelgrove as very interactive with the children and often down on the floor playing with them. She describes him playing dolls and having tea with Kate and playing trains with the boys. Her observations of the activities between Mr. Snelgrove and his children include parenting in the home, visits to the mall, to the park, to McDonald's, to Chapters bookstore as well as to his parent's home around the bay. She describes her relationship with the children as positive and indicates that she reads stories with them, plays games with them and that they are comfortable playing with her and will eat their meals for her. She indicates that she has met Mr. Snelgrove's family including his parents and all his siblings except for the brother that lives in British Columbia. She describes his mother as very good with the children and that they love being in their grandparent's company. She testified that if the children remain in the province, she would be available to help meet their needs, but that she does not wish to be a substitute parent. She also testified that she is often in the vehicle when the children are being dropped back to Ms. Butler's home and that Ms. Butler through Mr. Snelgrove invited her to come in and meet her. Ms. Mitchell indicated that she had not accepted an invitation to come in and meet Ms. Butler because the matter was going to be before the courts and she did not feel it was the appropriate time.
LEGAL FRAMEWORK:
101 As earlier indicated, there is no final order for custody and access in place for the Snelgrove children, rather an interim order, the most recent of which was December 16, 2008. In making a decision with respect to custody and access for children, the court must apply the principles set out in the appropriate legislation. The best interests of the child is the overriding consideration in any case involving custody. Section 16(8) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), states:
16(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.
102 Section 16(9) of the Divorce Act states that the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of the child.
103 Section 16(10) of the Divorce Act establishes the principle that a child of the marriage shall have as much contact with each parent as is consistent with the child's best interests.
104 Section 31(1) of the Children's Law Act, R.S.N.L. 1990, c. C-13 states that the merits of a custody and access application to a child shall be determined on the basis of the best interests of the child. Section 31(2) the Children's Law Act says that in determining the best interests of the child, the court must consider all the needs and circumstances of the child, including:
(a)
the love, affection and emotional ties between the child and,
(i)
each person entitled to or claiming custody of or access to the child,
(ii)
other members of the child's family who live with the child, and
(iii)
persons involved in the care and upbringing of the child;
(b)
the views and preferences of the child, where the views and preferences can reasonably be ascertained;
(c)
the length of time the child has lived in a stable home environment;
(d)
the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and the special needs of the child;
(e)
the ability of each parent seeking the custody or access to act as a parent;
(f)
plans proposed for the care and upbringing of the child;
(g)
the permanence and stability of the family unit with which it is proposed that the child will live; and
(h)
the relationship by blood or through an adoption order between the child and each person who is a party to the application.
(3)
In assessing a person's ability to act as a parent, the court shall consider whether the person has ever acted in a violent manner towards
(a)
his or her spouse or child;
(b)
his or her child's parent; or
(c)
another member of the household,
otherwise a person's past conduct shall only be considered if the court thinks it is relevant to the person's ability to act as a parent.
105 McIntyre, J. in K.K. v. G.L. and B.J.L., [1985] 1 S.C.R. 87 at paragraph 27 described the approach to be taken in resolving custody disputes as follows:
... It must be the aim of the court, when resolving disputes between rival claimants for the custody of the child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, and they are entitled to similar consideration in realizing any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside.
106 There are no presumptions either in favour of or against joint custody or shared parenting. Each parent bears the evidentiary burden of establishing where the best interests of the children lie. MacDonald v. MacDonald (1998), 36 R.F.L. (4th) 257 (Nfld. C.A.).
107 In addition to deciding the issue of custody and access of the children of Mr. Snelgrove and Ms. Butler and what parenting arrangement is in their best interests, I must also deal with the application of Ms. Butler to relocate with the children to the UK in the event she is given custody and primary residence of the children.
108 The Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27 set out the principles to be followed when one parent seeks to vary an existing custody order in the "mobility" context. The Supreme Court established that in those cases, a two-stage inquiry is involved; the first step being a determination as to whether a material change in circumstances has occurred since the original custody order was made and if so, then the second stage involves a fresh enquiry into whether the variation sought is in the child's best interests. In this circumstance, because no final order regarding custody and access is in place, this is not a variation hearing so I need not first decide whether the threshold of material change has been met. Having said that, a move to the UK would certainly constitute a material change in circumstances.
109 McLachlin, J. (as she then was) in Gordon v. Goertz said that each case turns on its own unique circumstances and that the only issue is the best interest of the child in the particular circumstances of the case. She identified some basic points to structure the exercise of the court's discretion. She said while there is no legal presumption in favor of the custodial parent, the bona fide views of the custodial parent is entitled to great respect. The fact that a move would result in a reduction in access is not a reason to deny the move. The parent's conduct is only relevant insofar as it affects parenting. The custodial parent need prove that the move is necessary, only that it is proposed in good faith and not to frustrate or interfere with access. She stated that the focus is on the best interests of the child, not the interests and rights of the parents and outlined at paragraph 49 the following factors that a judge should consider:
a)
the existing custody arrangement and the 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 the parent's ability to meet the needs of the child;
f)
the disruption to the child of a change in custody; and
g)
the disruption to the child consequent on removal from family, schools, and the community he or she has come to know.
110 In Clemens v. Clemens, 2009 NLUFC 19, at paragraphs 26-27, I reviewed the Newfoundland and Labrador Court of Appeal's decision in Whalen v. Whalen, 2005 NLCA 35 where the interrelationship between the Divorce Act and the Children's Law Act was canvassed and commented as follows:
In determining applications under either Act, the best interests of the child are paramount. The Children's Law Act sets out the factors to be considered in determining the best interests of the child but does not specifically address the question where relocation is at issue. Gordon v. Goertz, the leading Supreme Court of Canada decision on mobility, was decided under the Divorce Act and the Supreme Court set out factors which should be considered when relocation issues were raised. Our Court of Appeal said that these Gordon and Goertz factors were properly considered when mobility is an issue under the Children's Law Act.
The Court of Appeal in Whalen also noted that the two sets of factors described above are somewhat different, though not inconsistent. Where the Children's Law Act applies, the Court of Appeal stated that the factors set out in section 31(2) must be considered. The Court then stated:
However where a parent seeks to relocate with the children of the marriage, the factors set out in the Gordon case are also properly considered in determining the best interests of the child. There will be some overlap between the lists and some factors will be irrelevant, depending on the particular circumstances. The most thorough analysis of the best interests of the child will be achieved by consideration of all of the relevant factors.
111 It appears that where there is no prior order granting custody to one parent, the court must consider who the primary caregiver of the child is and give serious consideration to that parent's position. But even in circumstances where one parent has been found to be the primary caregiver, case law suggests that the court should not ignore the views of the access parent. Burns v. Burns 2000 NSCA 1; Rushinko v. Rushinko (2002), 161 O.A.C. 85 (C.A.); Bjornson v. Creighton (2002), 31 R.F.L. (5th) 242 (Ont. C.A.).
112 In Bjornson, the Ontario Court of Appeal held that in cases where one parent wants to move with the child and there is no existing order, the court should first decide the issue of which parent should have custody, and then decide whether to allow that parent to relocate with the child.
113 In the 2003 Ontario case of Terris v. Marcoux, [2003] O.J. No. 2829 (Sup. Ct.) at paragraphs 7, and 12-13 Justice MacKinnon observed that in some situations where there is no prior order, the issues of custody and relocation are closely related, but in theory they must be analyzed separately. She wrote:
It would be artificial to interpret Bjornson ... as requiring the court to determine custody without reference to all aspects of each parent's plan, including proposed place of residence, and only to consider the proposed place of residence as a discrete issue, at which time "great respect and the most serious consideration" is to be given to the views of the newly determined custodial parent.
In my view ... the issue of custody is to be determined having regard to all relevant factors, including place of residence. Once legal custody has been determined, the court will specifically address the relocation issue in accordance with the principles in Gordon v. Goertz ...
In some cases of first instance, there will be considerable overlap between the factual context of the custody determination and that of the relocation determination. Nonetheless, the determination of one issue is not necessarily determinative of the other.
114 In Terris, Justice MacKinnon decided that the mother, who had been the primary caregiver of the two young children, should be the primary residence parent in a joint custody regime, but her request to relocate with the children from Ottawa to Australia was rejected.
115 While the applications before me for custody, access and mobility are made pursuant to the Divorce Act, I will consider the best interests of the children in the context of section 16 of the Divorce Act, the factors outlined in Gordon v. Goertz, as well as similar factors in section 31(2) of the Children's Law Act where they are relevant.
ANALYSIS:
ISSUE 1
What custody and access regime or parenting plan is in the best interests of the children?
116 In analyzing the Divorce Act factors as well as the Children's Law Act factors in determining the best interests of the children for custody and access purposes, I have reviewed the evidence which has been presented, as well as the parenting plans that have been submitted by each of the parents and marked as exhibits.
117 Despite a rocky and volatile relationship between the parents, and despite the inevitable stress of living under the same roof for a lengthy period of time between the decision to separate and the actual physical separation of the parties, there is no doubt in my mind that these three children have the love and commitment of both of their parents. These parents, like many parents, have different parenting styles and different strengths and weaknesses.
118 Ms. Butler is child focused and sensitive to the needs of the children. She focuses on the learning environment and provides creative learning and play opportunities for the children. As she testified she likes to go by the book, and is well read on the physical, emotional and educational needs of the children. She is a nurturing parent, who currently cares for the children as a stay-at-home parent. Evidence suggests that housekeeping, budgeting, financial matters and household organization may not be her strengths.
119 Mr. Snelgrove is a hands-on dad, who has ensured that the children have activities outside of the home, including visits to parks and his parents' home around the bay where they have freedom to explore the outdoors. He is a sports enthusiast and physical activities with the children are important to him. Although he works full-time, he spends time with the children every day and has provided considerable parenting support to Ms. Butler, particularly when the children were very young. He washed and prepared all the bottles and the formula each evening for the next day, cleaned up the dishes assisted with feeding, bathing and changing babies during the evening and did a shift during the night, when all of the children were getting up during the night. Since separation, he has cared for the children at his own home and his evidence, Ms. Mitchell's and that of his parents is that he plays well with the children, deals well with their physical and emotional needs, making them his priority when he is not at work. He travels every other weekend, to his parents' home around the bay and ensures that his children have contact with their aunts, uncles, grandparents and cousins. He is a well organized individual who manages the family's tight finances and has kept the family on a sound financial footing with strict adherence to a family budget. He keeps detailed financial records and admits to "an accountant type of personality".
120 Mr. Snelgrove thinks Ms. Butler is a good parent and that the children are well cared for by her. Although Ms. Butler, in earlier hearings testified by affidavit that she felt Mr. Snelgrove was incapable of providing for the care of the children and had temper and anger management issues which need to be dealt with, her current testimony was that Mr. Snelgrove is a good father and she has no current concerns with the children being in his care.
121 Things have grown easier for both of the parents since their physical separation and as the children grow and become more physically independent. Kate is now nearly 4 years old, while the twins are now nearly 3 years old. Their personalities are emerging, and each of the parents was able to describe certain personality traits and likes and dislikes of each of the children. Kate is demanding more alone time with each of her parents, separate and apart from her brothers. The twins are at an age and stage where their play and activities requires full-time supervision, and apparently Kate sometimes feels left out. The parents have recognized her desire to spend some quality time with each of them separately from the twins, which she refers to as the "bo-bo's". They have adapted the access schedule to deal with this.
122 Ms. Butler has left some or all of the children in Mr. Snelgrove's care for extended periods of time while she traveled and visited her family in the UK. She also traveled alone and left all three of the children in Mr. Snelgrove's care. He has willingly accepted the role of full-time parent during these times and has demonstrated his ability to look after the needs of the children. There has been no evidence led that would suggest that these children are anything but happy, healthy and well-cared for by each of their parents during their parenting time.
123 In addition to other factors under the Children's Law Act which I have outlined in greater detail later in this judgment, I have considered s. 31(3) which provides "in assessing a person's ability to act as a parent, the court shall consider whether the person has ever acted in a violent manner towards his or her spouse or child; his or her child's parent; or another member of the household, otherwise a person's past conduct shall only be considered if the court thinks it is relevant to the person's ability to act as a parent". The Divorce Act in section 16(9) also states, "In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child."
124 Ms. Butler has made a number of allegations in affidavits filed with the court in previous proceedings about Mr. Snelgrove's threatening and aggressive behavior. The most serious allegation was that he put his hands around her throat and threatened to kill her, while removing six week old Kate from her arms in July 2006. Despite several contacts with social workers from Child, Youth and Family Services and the police she made no mention of this event until November 2007 at the time when the social workers advised that the family file was being considered for closure. When the issue was raised with Mr. Snelgrove, he did admit that an incident had occurred and that he had restrained her and taken Kate from her arms so that he could take the baby to visit with his parents. He apologized to Ms. Butler during the drive, which she confirmed, and recognized that his behavior was inappropriate. He denied ever threatening to kill her, or putting his hands around her throat. Ms. Butler testified that there have been no other incidents that she would describe as physical although they have had verbal arguments.
125 Ms. Butler called as a witness, her housekeeper and babysitter, Mrs. Margaret Dunphy. Mrs. Dunphy was interviewed and hired by both Mr. Snelgrove and Ms. Butler and came once a week to clean the home and for about 1 1/2 years did occasional childcare. She testified that she had heard Mr. Snelgrove raise his voice and heard him use a curse word once when he was caring for the children. She was not in his presence at the time and could not remember what he said. She helped Ms. Butler occasionally by driving her to the doctor or to the hospital. On occasion when Mr. Snelgrove was away for work, he left the van and the keys so that Mrs. Dunphy could drive Ms. Butler and the children if necessary. On another occasion when Mr. Snelgrove was away she assisted Ms. Butler in administering medication by way of a mask to one of the boys. Ms. Butler characterized these incidents as indicators that Mr. Snelgrove had a temper, and was not as attentive to the children's needs, as he should have been. Mrs. Dunphy indicated that she had known for some time that Ms. Butler wanted to go to the UK and that she felt sorry for her as she had not adjusted well to Newfoundland and Labrador and had no family here. Mrs. Dunphy indicated that she did not observe Mr. Snelgrove with the children as he was usually at work when she was in the home and that Ms. Butler appears more contented now and more at ease with the children and that she is a good mom.
126 Ms. Janice McGrath, friend and neighbor of Ms. Butler, also testified as to Ms. Butler's parenting abilities of the three children and indicated that she felt that she was a good mom with much patience and that she did a lot of activities with the children. She indicated she observed Mr. Snelgrove less often with the children but the times that she did see him with the children on play dates, he seemed to be fine. She also indicated that she felt it was hard for Ms. Butler to be here with no family and it was hard to make friends when caring for three young children. They have been friends for almost 4 years, and her daughter and Kate played together frequently. They do not see Ms. Butler and the children as frequently now since they have moved but still have contact a couple of times a month. Ms. McGrath's testimony was called to confirm an incident described by Ms. Butler where she and Ms. McGrath and the two girls were planning to go to a children's show at Holy Heart Theatre during a snowstorm. Apparently Mr. Snelgrove would not shovel the driveway or drive them to the theater as he indicated that the snowstorm was not over and he felt that they shouldn't be out driving around. The two mothers and daughters wanted to go and therefore called a cab together to go to the show. While Ms. Butler was attempting to carry Kate and get into the cab she fell in the snow. Ms. Butler characterizes this incident is another example of Mr. Snelgrove's inappropriate behaviour while he indicates that he didn't feel it was sensible to shovel the snow when the storm wasn't over yet.
127 Other incidents described by Ms. Butler as aggressive and inappropriate have been described earlier in my review of the evidence. Christmas 2007 and Mrs. Butler's visit to Newfoundland and Labrador stands out as a most difficult situation for all concerned. Both parties behaved in a stubborn and obstinate manner resulting in an unhappy Christmas for all concerned. Mr. Snelgrove showed a lack of restraint in insisting that his mother-in-law leave the house, while Ms. Butler provided no information as to her whereabouts to Mr. Snelgrove, and despite the recommendations of Child, Youth and Family Services social workers deprived him of access to their children for the entire Christmas period.
128 Ms. Butler also reported the children returning with bruising on their knees after visits with their father to Child, Youth and Family Services who were satisfied following investigation that there was no inappropriate parenting. Ms. Butler testified that she simply wanted officials to know that Mr. Snelgrove was not as careful as she was and that she felt at times he was inattentive to their needs. She made serious allegations with respect to a smell on her daughter's hair which caused an investigation by Child, Youth and Family Services. She indicated at the time that she did not think Mr. Snelgrove had done anything inappropriate with his daughter and continued to say that at the time of trial. Ms. Butler now indicates that she had some concerns about his parenting early on, but that she no longer has any concerns and that she is not trying to paint Mr. Snelgrove in a negative light. She points out that she never denied access as a result of any of her concerns.
129 While all of the allegations made by Ms. Butler were taken seriously by the police and Child, Youth and Family Services when they were made, they were investigated and no causes for concern were noted. Some of the allegations were made close to times of proceedings in the court and in my view may have been exaggerated or amplified by Ms. Butler to achieve certain results. In some cases, the allegations were contained in affidavits and not subject to cross-examination during those interim hearings. During the course of this trial all of the allegations were subject to cross-examination, and also supplemented by evidence of social workers and other persons who had a relationship with Mr. Snelgrove and Ms. Butler. I find that there is no evidence of past conduct by Mr. Snelgrove that would preclude him from acting as a parent to their three children. Neither Ms. Butler nor her counsel has seriously argued at trial for this result.
130 If the matter before me was uncomplicated by the request for relocation, I would certainly be making an order for shared parenting. The circumstances and the evidence before me would lead me to gradually increase the time that the children spend with their father, in recognition that their bedtime would be getting later and that it would be appropriate for them to spend more time in the evening with their father, thus reducing the rushed supper hour and return to their mother's home. I make these comments in consideration of section 16(8) and (10) of the Divorce Act where I am required to consider the best interests of the children by reference to the condition, means, needs and other circumstances of the children, as well as the maximization of contact time with each of their parents. There is nothing in the evidence before me, which would suggest that Mr. Snelgrove's access should be curtailed in any way other than to recognize that he works full-time Monday to Friday, 8:30 a.m.-4:30 p.m. and would not be in a position to care for the children during that time. Ms. Butler, currently a stay-at-home mother, is able to provide care for the children during the day and I find that it would be in the children's best interests to be cared for by a parent whenever that is possible. Both parents want to have the experience of sharing a bedtime story, tucking the children in, waking up in the morning and having breakfast together and while the children have not yet commenced school, a flexible parenting schedule that can accommodate the full range of parenting activities is possible and I find would be in the best interests of the children.
131 Ms. Butler testified that she wishes to pursue educational and employment opportunities especially when the children begin their formal education, albeit in the UK. Ms. Butler also indicates that with the full-time care of three young children and her inability to drive, she feels socially isolated. It has been difficult for her for a number of reasons to participate in any parent-child playgroups outside of the home. A shared flexible parenting schedule allows each of the parents to pursue their educational, social and employment obligations as well as providing good parenting for the children.
132 The evidence supports a finding that there is a strong and loving bond between these three children and each of their parents, that each parent is willing and able to provide care for the children, that there is a strong relationship of love, affection, and emotional commitment between each of the parents and the children and that the plan for the care and upbringing of the children that each of the parent presents is appropriate, and I find it would be in the children's best interests for Mr. Snelgrove and Ms. Butler to share parenting responsibilities.
133 As I said earlier, I make these comments about custody and access in the absence of consideration of the request for relocation which is dealt with later. Furthermore, in the absence of a relocation application, I would also consider whether the shared parenting relationship would occur in the context of joint or sole custody. Mr. Snelgrove seeks a joint custodial order, while Ms. Butler seeks sole custody of the children. When parents make decisions together, it is called joint custody. When one parent alone is given decision-making authority, it is called sole custody. Sometimes, on rare occasions each parent is given specific responsibilities for decision making with specific aspects of a child's life.
134 When I speak of joint or sole custody, I am speaking about the decision-making regime that will be put in place to guide the development of the children's future; their health, education, religious training, social, extra-curricular and recreational pursuits, spiritual needs, and all other major areas of the children's lives. This is different than the children's day to day living arrangements with one or other of the parents, referred to as the parenting arrangement.
135 Ms. Butler suggests that difficult communications between her and Mr. Snelgrove and the difficulty with the children's behavior at transition time is a barrier to joint custody or joint decision-making. She also suggests that they do not work well together as a team and that joint decision-making has been difficult. The evidence indicates that despite the relationship difficulties between the parties, they have been able to make joint decisions with respect to travel, health and recreational pursuits of the children, including modifications to the access arrangements to ensure that Kate gets to spend some alone time with each parent. The evidence discloses, although they have jointly made decisions with respect to the children's vaccination program including the H1N1 vaccine, they have had some difficulty with respect to a particular vaccination for the children and they continue to seek medical advice on the new prevnar vaccination for pneumococcal meningitis. Early on there were disagreements with respect to whether the children should sleep in the parent's bed or in their cribs and disagreements over visitation with Mr. Snelgrove's parents. For the most part these issues have been resolved and in my view would not constitute a barrier to joint decision-making on important future issues regarding the care and upbringing of the children.
136 As stated by Green, J. in Brushett v. Brushett (1993), 109 Nfld. & P.E.I.R. 129 (Nfld. S.C.(T.D.)) at p. 143:
... if it is in the best interests of the child that he or she continue to receive direction and input from both parents by an arrangement that should be denominated as joint custody, that should be ordered even though one parent opposes the arrangement.
137 Case law suggests that joint custody is not often ordered when there are breaches of previous court orders, high conflict, reckless behavior and levels of violence between parents that would adversely affect the children's best interests. I do not find the evidence presented constitutes this level of inappropriate behavior. A review of case law on joint custody illustrates that there is a wide discretion in the type of parenting arrangements which can be ordered provided it meets a child's best interests. Case law also demonstrates that good communication and commitment by both parents to a joint custody, shared-parenting arrangements present the optimal situation for success. Both parents, in their respective parenting plans in the present case, make a commitment to be open and honest and respectful in communication with each other. See for example Snook v. Lane, 2006 NLUFC 6; O'Brien v. O'Brien, [2001] N.J. No. 112 (S.C. (U.F.C.)); LaSaga v. Foote, [2005] N.J. No. 319 (Prov. Ct.); King v. Cole, 2006 NLUFC 41; Burry v. Healey, 2006 NLUFC 46; Brushett v. Brushett (1993), 109 Nfld. & P.E.I.R. 129 (Nfld. S.C. (T.D.)).
138 Joint custody and shared-parenting arrangements have been ordered when it is considered in the best interests of the children even in situations where there is conflict and communication difficulty between the parents. Thornhill v. Henderson, 2008 NLUFC 34; Grandy v. Grandy, [1999] N.J. No. 268 (S.C. (U.F.C.)); Park v. Walsh, 2003 NLSCTD 33; Jennex v. Cox, 2005 NLUFC 8 and Brushett v. Brushett, 109 Nfld. & P.E.I.R. 129 (Nfld. S.C. (T.D.)) are cases which demonstrate that despite strained or even hostile relations between parents, it may still be in the best interests of the children to live in shared parenting arrangements with both parents continuing to participate in joint decision-making for their children.
139 On the evidence before me I find that there is strong love and affection between each parent and the children, that each is able to parent the children and each parent is well equipped to provide their children with guidance and education and the necessaries of life. Although there is conflict between the parents, police reports, Child, Youth and Family Services social worker's reports and evidence from Elaine Kufudi do not demonstrate that hostility or parental behavior towards each other would prevent civilized communication and joint decision-making in the best interests of the children. In my view both Ms. Butler and Mr. Snelgrove have the ability and demonstrated interest to act as capable parents. It is my conclusion that joint custody and a sharing of parenting responsibilities will further their children's best interests.
ISSUE 2
Whether it is in the children's best interests to relocate from Newfoundland and Labrador to the United Kingdom with their mother.
140 I turn now to Ms. Butler's application for relocation to the UK with the children. Her application to relocate is based on her belief that she is the primary care giver and that it would be in the children's best interests to move because she would have the support of her parents along with extended family and close friends in the UK to assist her in raising the children, that her ability to earn income and secure financial independence for herself and the children would be improved, that the educational opportunities available to her to achieve teacher status would be less costly and of shorter duration in the UK, the uncertainty of her immigration status in Canada would be removed, that her inability to drive would be offset by a better public transportation system, and that relocation to her place of birth and familiar surroundings where she could work would result in a better life for the children as she would be a much happier mother. To paraphrase her evidence she wants to move away from a situation where she is living in a foreign country with the relationship that has broken down. She does not like the way her former husband treats her and she does not have a positive relationship with her in-laws, the children's grandparents. Her career opportunities are constrained, and she says she feels socially isolated having the care of three young children, no driver's license and few friends. She says she is not proposing to move to deny access to the father but rather is willing to provide web cam and telephone access on a frequent basis, with extended summer vacations in Newfoundland and Labrador as well as shared school holiday breaks. She also suggests that should Mr. Snelgrove wish to relocate to the UK, she would ensure that he had regular in person access to the children.
141 Mr. Snelgrove opposes the application to relocate on the basis that the children's best interests will be served by them remaining in Newfoundland and Labrador, where they will continue to have daily contact with their father, which they have enjoyed since their birth, as well as regular contact with grandparents, cousins and aunts and uncles. Mr. Snelgrove asserts that the children's financial stability and security is assured as he has a permanent position as a chartered accountant and in addition to his financial contributions to Ms. Butler through child support and spousal support, she is receiving the universal child care benefit as well as the child tax benefit. Mr. Snelgrove states that Ms. Butler's plan for relocation is poorly thought out and provides no certainty, security or stability for the children. She has no job and has not enrolled in any educational institution, and does not know where she plans to live. Her current plan involves staying with her parents until she finds her feet. She has no immediate plans to work or go to school, but rather would begin the process of applying and then would move to wherever she was accepted. The children may go to day care if she locates outside of the area where her parents live or her mother may travel and assist her with child care. He points out that this would involve the children likely moving several times and having a variety of care arrangements until such time as their mother completed her education and had a teacher placement. Although his preference is for Ms. Butler to remain in Newfoundland and Labrador and continue her parenting role with the children here, he does not oppose her move to improve her education and job prospects and is willing to care for the children in Newfoundland and Labrador as primary parent, should she wish to relocate alone. He points out that she has never applied for a student or work visa in Canada nor has she applied for permanent resident status. She has not pursued any educational opportunities in Newfoundland and Labrador. Any of these actions could potentially remove some of the uncertainties associated with her immigration status. He indicates that he cannot at the present time contemplate a move to the UK as he would have no idea where to search for employment as Ms. Butler is uncertain as to where she will ultimately relocate.
142 Counsel have referred me to a number of scholarly articles related to mobility or relocation cases. The authors indicate that parent mobility cases are among the most difficult of all family law cases because there is often no middle ground. To be clear, it must be remembered that the parent proposing to move absolutely has the right to move. If the parent is not allowed to move with the child, he or she then has to make the difficult decision as to whether to give up custody or stay with the child. A move often results in reduced access between the child and the non-custodial parent. The future impact of the move on the child is difficult to assess as is the impact of loss of contact with the non-custodial parent. The stakes are high. According to current Canadian jurisprudence, courts will consider custody afresh whenever a custodial parent makes application to move. Courts only allow the move if it concludes that the move is in the best interests of the child.
143 Courts are often concerned with the effects and impact of relocation on children including psychological effects. The article of Nicholas Bala & Joanna Harris, "Parental Relocation: Applying the Best Interests of the Child Test in Ontario" (2006), 22 Can. J. Fam. L. 127 points out that there is relatively little psychological research about the effects of relocation and there are questions about the helpfulness of psychological assessments in relocation cases. The authors state on page 13:
There is relatively little psychological research about the effects of relocation and there are questions about how much an assessment by a psychologist can add to this type of case. The psychological evidence is often predictable: if the child relocates the relationship with the parent who remains behind will suffer, especially if the child is younger. The issue that judges must resolve is whether the cost to the non-moving parent and child outweighs the benefit of relocation to the custodial parent and child. This balancing is a legal issue on which a psychologist can usually only shed limited light.
144 Justice Handrigan in Andrushko v. Remillard (2003), 222 Nfld. & P.E.I.R. 82 (N.L.S.C. (T.D.)) at paragraphs 12 to 14 reflected on this issue.
12.
It is always difficult to confront the mobility issue when deciding on the custody of children. The reason is self-evident: a mobile parent is often a greater threat to the physical integrity of the family unit than the initial separation, regardless of whether the children, accompany that parent or stay behind with the one that does not move. The children are deprived of contact with one parent for greater or lesser periods of time. The severity of this deprivation varies with the distance that the mobile parent moves.
13.
Many things have to be considered in assessing what is best for their children in those circumstances: can the parents afford to pay for the children's visits? Are the children old enough to travel alone or must they be accompanied by an adult? Can the parents travel to visit their children? Do the parents want to travel to visit their children? Do the children want to visit their parents? Will ground travel be possible or must the children travel by air? Do the parents work schedules affect their abilities to accommodate the travel arrangements? Will the travel be within the province or outside, within the country or outside?
14.
These considerations might be categorized as logistical ones. There are other important factors that cannot be resolved by considering finances or by referring to airline, bus, school or work schedules. I referred to the toll that long separations take on the affections that children and parents have for each other. Their feelings for each other will naturally diminish when they are separated, and may virtually dissipate during long absences so that they risk becoming estranged from one another.
145 Professor Bala also commented on page 9 of the same article about the importance in mobility cases of assessing the child's relationship with each parent. He states:
One of the most significant factors in relocation cases involves an assessment of the comparative importance of the children's relationships with two parents. The mere fact that the parent who wants to move is characterized by the court as the "primary caregiver" does not mean that the court will allow the move. However, if the child has only limited involvement with the "access parent," the court is much more likely to allow the child to move; these types of cases are, for example, more common if the child was born to a single mother and the access parent has never lived with the child. Conversely, if both parents have close relationships with the child and are in a "true shared parenting" situation, the court will be reluctant to permit a move to occur, as this will result in a more pronounced emotional loss to the child.
146 Counsel submitted between them, seven lengthy articles authored by legal professors or psychologists. Several of them reviewed the developments in the law in relocation cases and contained commentary and case reviews in several Canadian jurisdictions. One legal article reviewed the history of the development of presumptions and burdens in relocation cases and provided scholarly commentary on alternative proposals for change. Psychological journals reported on a variety of studies of the impact of relocation on children's current and future relationships with parents, theories of attachment, adjustment patterns and difficulties experienced by children following parental separation, etc. I have read all of the articles submitted by the counsel, and despite not referencing each of them directly, I did find the material useful and informative.
147 The Supreme Court of Canada in Gordon v. Goertz rejected the idea that there should be presumptions in relocation cases, with MacLachlan, J. (as she then was) writing that "the Divorce Act contemplates individual justice. The judge is obliged to consider the best interests of the particular child in the particular circumstances of the case. Had Parliament wished to impose general rules at the expense of individual justice, it could have done so. It did not." This case established the framework and the factors that must be analyzed in context when determining whether any mobility or relocation application is in the best interests of the child. I cannot consider the interests and rights of the parents but rather must focus on what is in the best interests of the children.
i)
Existing custody and access arrangements
148 As previously mentioned, there is no final order as to custody and access. In this particular case there is an interim order which provided for joint custody with primary residence with the mother with specified access to the father. The specified access outlined in the interim order was for weekdays from 4:30 p.m. to 7:00 p.m., as well as for every second weekend from Friday at 4:30 p.m. to Sunday at 7:00 p.m. Mr. Snelgrove's counsel argues that the interim joint custody order precludes a finding that Ms. Butler is the primary caregiver. With this submission I disagree. Interim joint custody simply provides the framework for decision-making with respect to the children. It is important, however, according to Young v. Young (2003), 34 R.F.L. (5th) 214 of the Ontario Court of Appeal, to accurately characterize the actual care arrangements related to the children. This is so because the Supreme Court of Canada in Gordon v. Goertz stated that while there should be no presumption in favour of the custodial parent, the custodial parent's views were entitled to great respect.
149 In this case, Mr. Snelgrove argues that far from being simply an "access" parent he is actually a "primary care" parent, because in addition to the specified access he has provided primary care for the children for significant periods of time, while Ms. Butler has traveled and as well, at her request, moved in with her or to assist in the care of the children while they were sick. I accept that Mr. Snelgrove has parented the children for significant periods of time and has been actively involved in their care but would not in my view be characterized as the primary care parent. The children spend all day with their mother and go to bed in their mother's home every night except for every second weekend. I do not make this finding to in any way diminish Mr. Snelgrove's role and do acknowledge that he has spent some time every day with the children since their birth and for significant periods of time has provided full-time care to one or more of the children. He has clearly indicated to the court that he would like to be in an equal shared parenting arrangement. But this is not the current situation. Ms. Butler is the primary care or custodial parent, and I will deal with the mobility application in that way and give her role as primary care parent the weight that is appropriate.
ii)
Love, affection and relationships between the children and each parent
150 Kate, Dylan and Zach are fortunate to have two loving parents. For both parents, it appears the children are their number one priority and occupy a central part of their lives. It is always difficult when families separate and it is important for the parents to ensure that the children always feel safe and secure in their care even when they live separately. While the relationship between the parents may have ended, each of them will always be a parent for Kate, Dylan and Zach and the children need to feel comfortable and confident that they are able to have a loving relationship with each parent. Mr. Snelgrove and Ms. Butler have lived separately since September 2008. Kate was 15 months old, and the twins were approximately 4 months old. They have lived in a two home situation being cared for by their parents separately for more than half their lives. It is likely they have no recollection of any other arrangement than their current situation where they spend their time separately with each of their parents. Kate has begun to demand separate time from her brothers with each of her parents and this has been accommodated. Each parent has demonstrated through their evidence and witnesses that they are loving and nurturing parents and each has an excellent relationship with their children. In fact, each parent, at the time of trial has confirmed the others love, affection and positive relationship with the children.
iii) Desirability of maximizing contact between the child and both parents
151 While the Divorce Act in section 16(10) establishes that a child should have as much contact with each parent as is consistent with the child's best interests, this maximum contact principle is not absolute. "The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests ..." (Gordon v. Goertz at paragraph 24).
152 Counsel for Ms. Butler also referred me to the comments of Butler J. in Clift v. Reid, 2008 NLTD 189 where she stated at paragraph 98 "it would be counter-intuitive to deny mobility on the basis that it would defeat the principle of maximum contact when relocation is otherwise determined to be in the best interests of the child." I agree. Relocation, in some cases, may be found to be in the best interests of a child and contact with each of the parents may not be maximized.
153 These children are currently enjoying daily contact with their father, and he is hoping for more contact rather than less as they grow up. Their mother also wants the children to have continuing contact with their father but proposes that this contact be maximized within the context of her relocation to the UK. In other words, they would be sent to Newfoundland and Labrador for blocks of time, corresponding with their school vacation times once formal schooling commences, with frequent, if not daily web cam or telephone access. These young children would not be able to fly unaccompanied and to date Ms. Butler has not been able to take a trip to the UK with all three of them because it was logistically not possible. Although her parenting plan proposes frequent travel to Newfoundland and Labrador, it is not clear to me that the costs of such traveling have been adequately and realistically considered.
154 In some cases where mobility applications have been allowed, the access parent's contact and involvement in the children's lives has often been quite limited and the compensatory access provided was found to mitigate the adverse effects of the move. See Templeman v. Whalen, 2010 NLUFC 3; Clemens v. Clemens, 2009 NLUFC 19; Evely v. Evely, 2008 NLUFC 7.
155 In some cases where mobility applications have been allowed, the moving parent's plan involved accepting a well-paying job and the increase in financial security in the new location was found to be in the best interests of the child outweighing the principle of maximum contact. Clift v. Reid, 2008 NLTD 189.
156 In some cases mobility applications have not been allowed because maintaining and maximizing ongoing contact with the non-moving parent was found to be in the best interests of the child and it outweighed the benefits to the child presented in the moving parent's plan to relocate. See Young v. Young, 2009 NLTD 98; Hancock v. Elkins, 2003 NLSCTD 138; Andrushko v. Remillard (2003), 222 Nfld. & P.E.I.R. 82 (N.L.S.C. (T.D.)).
157 I make only passing reference to the outcomes which I have drawn from a number of cases mentioned above which were included in the Counsels' books of authorities, since many scholarly writers and judges have said that when dealing with mobility cases the facts of each particular situation are unique, and the determination of the best interests of the children is heavily dependent on the particular context, and family circumstances before the court. Because there are no presumptions in a mobility case, the court must assess all of the evidence in context and decide what the best interests of the child are in each unique set of family circumstances. One of the results of having no presumptions in favour of the moving parent or the access parent is that because that judicial assessment is based on a multitude of factors assessed in each unique circumstance, case law has less precedential value. It is useful nonetheless to review mobility cases as a number of principles outlined in the Supreme Court of Canada in Gordon v. Goertz have been applied in factual situations and are helpful in assessing the best interests of the child.
158 Given Mr. Snelgrove's daily contact with the children and considerable involvement with their parenting, it is my view that his continued strong relationship and contact with the children is desirable and an important factor in determining their best interests and weighs heavily in the equation, which balances the children's best interests between their father's parenting plan, which sees this daily physical contact continue and their mother's parenting plan, which will have the effect of diminishing the current contact.
iv)
Views of the Children
159 The views and preferences of these children, all three being under four years of age, cannot be reasonably ascertained. The only evidence I have with respect to any preferences of the children involved the testimony of both parents that Kate has made it known that she wishes to spend some "alone time" away from her brothers with each of her parents and that this has been accommodated. Other witnesses, including Ms. Mitchell, Mrs. Snelgrove Sr. and Mr. Snelgrove testified that the children are excited and run to greet their father when he arrives to pick them up and occasionally there is reluctance and tears when it's time to return to their mother's home. From all accounts the children seem to enjoy the time they spend with their father. Ms. Butler, her mother and social workers, who testified also indicate that the children are happy and well cared for and enjoy spending time with their mother.
v)
Custodial parent's reason for moving, only in the exceptional case where it is relevant to the parent's ability to meet the needs of the child
160 The Supreme Court of Canada in Gordon v Goertz, as I interpret it, has said it is not necessary for a parent to establish that the reasons for wanting to move arise out of necessity. If the move is being made in order to meet the needs of the child however, this would be a relevant consideration in deciding whether to permit the child to be relocated. Ms. Butler has advanced a number of reasons to support her application to relocate with the children to the UK, some of which she presents as being necessary and relevant to her ability to meet the needs of the children. A number of reasons Ms. Butler presents to the court, including her desire to be closer to her family, eliminating the uncertainty of her immigration status and thus easing her entry into the workforce, removing herself from a place and relationships that she dislikes can be viewed as being in her best interests. However, she says to the court that her best interests and her happiness should be found to be in line with the children's best interests.
161 Ms. Butler says the children will be better off living in the UK with her because she is best positioned to provide them with a stable home, educational guidance and the nurturing necessary for young children. Her plan is to enroll the children in half time daycare to assist them with their transition to school and provide proper socialization. She says during the morning, she will seek part-time work as a music teacher. She also intends to apply for admission to a graduate training program (GTP) in September 2011. This program allows a graduate with another degree to achieve teaching status in the UK school system through a combination of education and classroom experience. Ms. Butler indicates that, if accepted into the program, she would receive a salary during the training program. She was unable to advise the court as to the level of pay associated with the graduate teacher training program although, she indicated it would be less than a newly qualified teacher status. The pay scale for newly qualified teachers, which was provided to the court from a website showed a range of 21,000 to 30,000 British pounds. She advised the court that it would take some time for her to achieve financial security, but if she were successful in being accepted into the GTP program, she felt certain she would be able to obtain work as a teacher in a school with pension benefits. She also outlined some other government benefits including cost of housing assistance in some parts of the UK.
162 Ms. Butler provided a letter from the University of Southampton dated December 22, 2009, which acknowledged her enquiry regarding the graduate teacher program. This short piece of correspondence invited Ms. Butler to visit the website which would outline information on the basic requirements, courses, funding, and how to apply. Ms. Butler also provided a two-page summary from the University of Southampton website on the graduate teacher program, which among other things, outlined the qualifications to apply. It states that an applicant "needs qualifications at least equivalent to a UK bachelors degree and GCSE Grade C or above in mathematics and English. If you intend to teach primary you also need GCSE grade C or above (or an equivalent qualification) in a science subject." Ms. Butler has not applied to the University of Southampton or any other university in the UK as she indicated to the court that she must be a resident of the UK order to apply. She has not had her music degree assessed as to whether or not it would be acceptable in accordance with the qualifications. I raise this as Ms. Butler indicated to the court, when asked about applying to Memorial University Faculty of Education as a student with another degree, that she was concerned that her qualifications may be insufficient as her music degree from England did not contain a lot of academic subjects such as math and science. There was no evidence before the court as to whether Ms. Butler's UK music degree would qualify her for admission to the graduate teacher program.
163 Ms. Butler says the children would have stability living with her in the UK. Ms. Butler's proposed plan and her evidence indicate that she has not yet chosen a place where she will live, go to school or work. When her mother testified, she indicated that she did not know what her daughter's plan was when she moved to England with the children, but that she would be welcome to stay with them in Stockton-on-Tees, approximately 250 miles north of London. Ms. Butler provided some website material on schools and school terms in Stockton-on-Tees, as well as some sample daycare and school fees in the area. Ms. Butler did indicate to the court that she would probably move to Stockton-on-Tees with the children, at first, residing with her parents until she was able to more fully develop her plan and determine if and where she may be accepted to a teacher training program. At that time, possibly September 2011, she would move to that location with the children.
164 Ms. Butler indicates that the removal of the threat of deportation and the uncertainty surrounding her immigration status in Canada are important reasons for her move and relevant to her ability to care for the children. Ms. Butler has received from Citizenship and Immigration Canada, a temporary resident visa. It has been renewed on a number of occasions, and the current temporary resident visa was signed on January 12, 2010 and is valid until August 4, 2010. Ms. Butler's visitor's visa was entered as an exhibit. It contains conditions, which prohibit Ms. Butler from engaging in employment in Canada and from attending any educational institution in taking any academic, professional or vocational training course. On the back of the visa it states as follows: "If you wish to extend your stay in Canada as a temporary resident (visitor, student or worker), you must complete an application form. To ensure that you receive your new document before the old one expires, you should return your application, at least 30 days before the expiry date of your status."
165 The evidence indicates that when Ms. Butler and Mr. Snelgrove married and moved to Newfoundland and Labrador to have their first child, it was where they planned to live and raise their family. Their intention was for Ms. Butler to apply for permanent resident status during the term of her temporary resident visa. Despite Mr. Snelgrove's urging, Ms. Butler has never made application for permanent resident status. Early on she indicated it was because she was pregnant and needed chest x-rays, which she could not have during her pregnancy, and then she became too busy with a new baby and within a relatively short period of time found herself pregnant again. Later on, perhaps even while pregnant with twins, she indicated to Mr. Snelgrove that she was unhappy in Canada and did not intend to apply for permanent resident status. She made it abundantly clear in her evidence that she did not wish to remain in Canada and had no intention of applying for permanent resident status. Although she has indicated that she wishes to improve her educational status and seek employment to improve her financial security, she has not applied for either a temporary resident work or student visa in Canada. Again her evidence was clear that she does not wish to contemplate remaining in Canada, and does not wish to seek employment or educational opportunities here. Although moving to the UK would certainly clarify her immigration status, it cannot be said that there is any threat of deportation or other immediate or anticipated problem with her remaining with the children in this country that could not be remedied by Ms. Butler making appropriate applications. Obviously, should Ms. Butler's immigration status change, through no act or omission of her own doing, this would likely constitute a material change in circumstances justifying a variation application.
166 Ms. Butler also believes it would be in the best interests of the children to spend more time with their maternal grandparents. Mr. Butler has not traveled to Newfoundland and Labrador, and has only seen the two grandchildren who have traveled to England. He does have an opportunity to interact with them on the web cam. Mrs. Butler has traveled to Canada and stayed with Ms. Butler and the children on three occasions, for periods of time ranging from 2 to 4 weeks. While it may be positive for the children to spend more time with their maternal grandparents, it must be balanced with the loss of time with their father. The children's relationships with grandparents, while important, cannot displace or be placed on a higher plane than an otherwise healthy parental relationship. This rationale, without more, would not support a finding that it would be in the best interests of the child to move to another country to spend more time with their grandparents rather than to remain in the location where their parent resides.
167 Ms. Butler says that she needs the help of her parents and friends in the UK to support her in raising the children because she has no support, friends or family in Newfoundland and Labrador. While Ms. Butler may not have family in Newfoundland and Labrador she has given evidence that while the children were younger, the family hired students to assist her with the care of the children. She has a friend and housekeeper, Mrs. Dunphy who has cared for the children and assisted Ms. Butler from time to time when needed, including driving her to places she needed to go. Ms. McGrath, a former neighbor and friend, also testified for Ms. Butler. Her daughter and Kate have been friends and play together from time to time. Ms. Butler worked for a period of time at the Reid Music School and developed a friendship with the Reid family and sought shelter with them during the Christmas 2007 episode. During that same period of time she and her mother and the three children also spent four days over the Christmas period with another set of family friends. In addition, Mr. Snelgrove's family, including aunts, uncles and cousins, some of whom live in St. Johns, have made every attempt to assist Ms. Butler in caring for the young children or providing other services that she may require including driving and babysitting. Ms. Butler did not give any evidence as to the support or assistance, other than from her mother that she might obtain in the UK. She has not lived in the UK on a permanent basis for many years and the only friend that she mentioned during trial was Mr. Jamie Parkinson, who she met online in Canada, who has since relocated to the London area in the UK. She indicated her relationship with Mr. Parkinson is not the reason that she is seeking to move to the UK.
vi) Disruption to the child of a change in custody
168 Any change in custody or access to a child may be disruptive. Disruptions can also include temporary changes in a child's routine such as a new babysitter, going to a day care, starting school and moving between parents after separation. Most children are resilient and can cope well with change. Most parents strive for consistency, stability and helping a child ease into new situations. These three children have already coped with several changes including the separation of their parents, moving into a new residence with their mom and spending time with their dad at his new home. The three children have seen their dad every day for at least several hours and have spent weekends with him at his home or their grandparent's home around the bay. This has been their routine for nearly 2 years. To disrupt the current ongoing physical relationship with both parents, the court would have to find that it was in their best interests to do so and the disruption would minimally impact the emotional and physical well-being of the children. Ms. Butler feels that the move would be in the best interests of the children as she would be a happier person and that the children could visit with their father in the summer, which would also benefit the children by allowing them to spend extended periods of time with their father. Mr. Snelgrove, however, points out that the children would miss daily physical contact with him and that web cam and telephone access at their young age is not a good substitute for a hug, a kiss and a bedtime story. He also points out that extended visitation during the summer holidays would require that the children be placed in daycare, as his summer vacation schedule is limited. From the evidence, there can be no question that the children's relationships with one of their parents will be disrupted if their mother moves.
vii) Disruption to the child consequent on removal from family, schools, and the community he or she has come to know
169 The children are not in school at this time and had limited involvement in the community through recreational, social or daycare activities. They do, however, have a number of Snelgrove relatives in the St. John's area as well as around the bay. They are close to their grandparents and see them frequently. The grandparents travel to St. John's on a frequent basis and spend time with their grandchildren. Mrs. Snelgrove, in particular, has provided care for the children when Ms. Butler was away and Mr. Snelgrove was at work. She cooks and cleans and enjoys spending time with her grandchildren in St. John's, and at their home around the bay. Mr. Snelgrove Sr. is also reported to enjoy spending time with his grandchildren and the evidence is one of the boys, in particular, is extremely fond of his grandfather and doesn't leave him alone when he is in his company. The children also spend time with their aunts and uncles and cousins and from Mr. Snelgrove's evidence, they appear to be a large closely knit family that likes to get together for meals and celebrations frequently. Ms. Butler feels that the decreased contact with Mr. Snelgrove and his family would be offset by increased access with the maternal grandparents. Ms. Butler indicates as the children are young, they are easily adaptable and the disruption would be minimal. While I'm sure increased physical access with the maternal grandparents would be a positive experience for the children, it is not something they currently enjoy and therefore do not miss. I believe Ms. Butler is underestimating the disruption and the impact of the significant loss of contact with Mr. Snelgrove and the children's extended family.
170 In addition to the Gordon and Goertz factors, which have been discussed above, there are factors in the Children's Law Act which are useful for a court to consider in determining the best interests of the child. Some of them overlap with the Gordon and Goertz factors and considerations under the Divorce Act and will not be repeated. I will address some of the other considerations which I do not feel have been touched upon previously.
171 The permanence and stability of the family unit with which it is proposed that the child will live is a relevant consideration in deciding the best interests of the child. Mr. Snelgrove is a chartered accountant having returned to Newfoundland and Labrador after 11 years working in Bermuda. He has a permanent job and indicates that his desire is to remain in the house he occupies in Mount Pearl. He has purchased the home and it is large enough to do for the three children for the next 10 years. He has received a promotion at his current job and indicates that he finds the current work environment positive and plans to continue his career with the city. He has been in a relationship with a nurse for approximately 6 months, who spends time with the children and his family. He has advised her that his children and spending time with him are his priority and she has agreed with this approach. They do not live together. He expresses satisfaction with all aspects of his life with the exception of wishing to spend more time with his children.
172 Ms. Butler is living unhappily in St. John's and has lived in the family home with Mr. Snelgrove and the three children up until September 2008 when she was granted exclusive possession. Following the sale of the home in April 2009 she moved to her present rental accommodation and has resided there ever since. She has been the primary caregiver parent for the three children who have for the most part resided with her in this home since the physical separation of the parties. She is unsettled in St. John's and wishes to relocate to some part of the UK, destination uncertain. She is not particularly settled in her career and has had several types of jobs since her graduation from music school in 1997. Her new proposed career path seems sensible, however, at this stage can most accurately be described as goal. The children are currently living in a stable home environment with her, but it is more difficult to predict what level of stability would be provided to the children should she relocate to the UK. Her relationship status with Mr. Parkinson is uncertain, but as with Mr. Snelgrove, she indicates the children are her first priority.
173 The plans proposed for the care and upbringing of the child are also considered a relevant factor under the Children's Law Act in determining the best interests of the child. Each of the parents has provided the court with a detailed proposed plan for the care and upbringing of the children. Each sets out appropriate principles to guide the development of children. Each plan details appropriate parental responsibilities to the children, custody and access plans, day-to-day communications and routines, planned changes, medical issues and emergencies, maintaining family relationships and holiday travel, respecting the children's cultural heritage, education and educational funding, religion, guardianship. In addition to these headings Mr. Snelgrove's plan also addresses serious illnesses, children's possessions, jurisdiction and financial responsibilities. Ms. Butler testified that she developed her plan with some assistance from Mr. Jamie Parkinson, who helped her by finding useful website information. Mr. Snelgrove's detailed plan was developed by reviewing Ms. Butler's plan and making changes and modifications to the plan where there was any disagreement. Mr. Snelgrove's plan also contains a scenario where Ms. Butler relocates without the children and where Ms. Butler remains in a parenting role in St. John's. There is no disagreement between the parties on the fundamental principles of each plan. If followed and implemented, the plans provide a wonderful roadmap for raising children. The parties do disagree on the issue of relocation and the custody and access schedules that would result there from. They also disagree on who should be the decision-maker with respect to the raising of the children. As previously indicated Ms. Butler believes she should be the sole decision-maker while Mr. Snelgrove proposes joint decision-making. Ms. Butler states that Mr. Snelgrove's plan is focused on equalizing time and financial responsibilities and is not as child focused as hers. Mr. Snelgrove points out that he wishes to spend as much time as possible with his children and focused on trying to fairly allocate parenting time equally taking into account his work schedule, and Ms. Butler's possible part-time work schedule, should she remain. He also spent considerable time outlining the financial realities, and responsibilities in Canada and in the UK as at the present time there is one income for a family of five. These are not inappropriate considerations in a parenting plan.
CONCLUSION:
174 Having listened carefully to all of the evidence presented by each of the parents and reviewing the parenting plans provided to the court, I must consider which option will serve the best interests of the children. While there is evidence to support Ms. Butler's contention that the relationship with Mr. Snelgrove and his family and her move to Newfoundland and Labrador has not lived up to her expectations, and that Mr. Snelgrove has behaved in a controlling and at times aggressive manner towards her, it does not diminish, outweigh or eliminate the positive attributes of his parenting relationship with Kate, Dylan and Zach. I find that Mr. Snelgrove is a caring, loving, nurturing parent to the three children and has been a consistent, regular and important part of their lives since their birth. Mr. Snelgrove provided full-time care for one or more of the children for a number of periods of time during 2009, outside of his scheduled parenting time including 18 consecutive days during December 2008 and January 2009, 21, consecutive days during May and June 2009, 17 consecutive days during August 2009, five consecutive days in October 2009 during periods of time when Ms. Butler was either in the UK with one or two of the children or during the period of time when she vacationed in the UK or in Edmonton on her own. I accept Mr. Snelgrove's documentation (noting that Ms. Butler did not contest these facts) for the period January 1, 2009, to December 31, 2009, showing that he had primary care, including overnights for one or more of the children for 118 days, along with the additional 25 days during which he resided with Ms. Butler to assist in the care of the children. This is not the case of a mere "access" parent seeking to thwart the legitimate aspirations of a parent to move with the children to provide them with a better life.
175 Even though their father has to date been a major part of their lives, I must still assess whether it may be in their best interests to move with their mother to the UK. I must consider what they may lose in the move, along with the benefits they may gain and how their mother's plan may further their best interests. I start with a consideration of the principle of stability in children's lives. There may be all kinds of reasons why it would be necessary to move a child, and it happens frequently. Families move houses, change jobs requiring children to make adjustments to new schools and new friends. Many times families make these moves together, and while there may be changes in the child's life, both parents remain together and are a stabilizing influence. When children's parents separate, children also experience change and may have to make adjustments including having a separate relationship with each of their parents, including possibly new partners, as well as adjusting to shared time with each parent in different residences. When one of the parents wishes to relocate, children have even greater adjustments to make as they face the potential loss of frequent physical contact with the other parent, depending on how far they move. There may be circumstances where a move is necessary, and clearly in the best interests of the children and where the loss of parental involvement is outweighed by the benefits to the children associated with the move. Examples are situations where children have been subjected to or exposed to domestic violence in their home, or negative parental role modeling or behaviour such as drugs and alcohol addiction or no parental involvement at all. There may be situations where the move is necessary for the financial security of the family, where the moving parent has a job or work opportunities which would provide the financial resources necessary for a family where they are not available without the move.
176 In reviewing Ms. Butler's plan which she feels is necessary, and in the best interests of the children, I find it is lacking in specificity. The groundwork necessary to ensure the stability and financial security of the family has not been completed. Ms. Butler has provided the court with a proposal of what she hopes will happen. When she returns to the UK, she may live with her parents for a period of time. She hopes to work part-time teaching music and may enroll the children in daycare part-time. If she moves to the UK, she plans to apply to upgrade her education. If accepted, she hopes to commence in 2011 at a location to be determined. Following completion of her education, she hopes to acquire work in her chosen field and will move to a location to be determined. Despite several trips to the UK over the last several years, the research presented to the court with respect to any of these options consisted only of recent internet searches. Ms. Butler gave no evidence as to any personal contact she had with any educational institution in the UK. Ms. Butler's mother testified that she was uncertain of her daughter's plans although she did indicate she would be willing to have Ms. Butler and the three children reside with her and her husband for a period of time. She also indicated to the court that although she currently works full-time in her own business, she could quit and care for the children if necessary. The court heard that Ms. Butler was an only child and that she has not lived with her parents since she left for college. The court heard no evidence as to the current living circumstances of Mr. Butler, retired and Mrs. Butler and whether their home in Stockton-on-Tees is large enough or suitable to accommodate Ms. Butler and three active children. Ms. Butler advised the court that the benefits to the children include a stable home environment. I find the children currently have a stable home environment and the proposed move introduces an unnecessary level of instability to the children's home environment.
177 Ms. Butler also indicates the children will be better off with her in the UK as she will move towards financial independence and financial security and will be able to contribute to meeting the financial needs of the children. I find this benefit is speculative and also renders the proposed financial situation of the children uncertain. While their father will continue to provide financial support to the family, there are significant family benefits such as the Universal Child Care Benefit (UCCB) in the amount of $3600 per year, as well as the child tax benefit calculated for the period July 2009 to July 2010 in the amount of $903.74 per month totaling approximately $10,844 per year which will be lost to the family, currently living on one income. Ms. Butler thinks there may be some UK financial benefits which will be available to assist in the family support but provided no information to confirm this. If Ms. Butler's desire is to improve her education, improve her career prospects and work towards financial independence, she has not demonstrated to the court that her only option is to pursue this in the UK. She has declined to consider the prospects in this province which would allow the children to continue to have the benefit of the love and guidance of both of their parents. Not only has Ms. Butler not exhausted all opportunities to allow her to improve her financial situation at the same time promoting the children's relationship with their father, she has foreclosed the possibility and testified that "it is not going to happen".
178 Ms. Butler has not convinced me that there are sufficient benefits or that the children's best interests will be served by moving them to the UK. The disruption to the children's lives involved in this move, the loss of physical contact and separation from their father, the proposed frequent travel across the Atlantic for access without a realistic financial plan, and all of the other uncertainties related to their move to the UK compared to the current arrangement that offers financial stability, appropriate accommodations, the love, care and guidance of their father on a daily basis, strong relationships with extended family, in my view supports my finding that the children's best interests are served by remaining in Newfoundland and Labrador.
179 I should note at this point prior to making my final disposition that Ms. Butler, as is her right, did not indicate to the court what her position would be should her application for relocation be denied. I cannot assume that she will remain in the province as she had indicated to the court on several occasions that she could not contemplate remaining here. I also cannot assume that upon learning that her application for relocation has not been allowed that she would necessarily leave the jurisdiction. So without certainty as to what Ms. Butler's position will be following notification that her application has been unsuccessful, I will not include a final order on custody and access at this time. I am satisfied that should Ms. Butler wish to leave the jurisdiction that the children will be and can be well cared for by their father and the court would make every effort to ensure that Ms. Butler continues to have as frequent contact as possible with the children. Should Ms. Butler decide to remain in the jurisdiction, I have provided considerable comment on the type of order that I would make regarding custody and access if both parents remain in this jurisdiction. I will leave it to counsel at this point, to discuss an appropriate parenting arrangement once Ms. Butler's position is known. I am prepared to reconvene on short notice and provide an order if the parties are unable to reach a consensual arrangement.
DISPOSITION:
180 The application for relocation by the Respondent is dismissed. Leave is granted to the parties to file a consent parenting arrangement in line with this decision. Once Ms. Butler has determined whether she will stay or relocate, if the parties cannot agree on a suitable parenting arrangement, they shall notify the court and an Order will be prepared.
D.E. FRY J.
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