In Csorba v. Csorba a recent case out of the Alberta Court of Appeal, the Court found itself considering the actions of a parent who had unilaterally relocated with a child from Calgary to Saskatoon. The parties had been married since 2009 and had a seven year old child together. On January1, 2017, the mother, without the consent of the father, moved to Saskatoon with their only child. The matter was brought before the Court of Queen’s Bench on the father’s application to have the child returned to Calgary, pending a full trial on the relocation of the child.
At the Court of Queen’s Bench, the presiding Justice adopted an approach to the mother’s unilateral move that is not unfamiliar in our Courts, finding that the mother:
…unilaterally took an action and moved the child out of this jurisdiction without any agreement or court order, and mobility is one of the most serious issues that a court can deal with. And for somebody to do that unilaterally is improper.
The presiding Justice ordered the return of the child pending a full hearing on the issue of mobility.
The mother appealed this decision, and the Court of Appeal set aside the decision of the Queen’s Bench Justice, permitting the mother to retain the child in Saskatoon. In doing so, the Court found that the Queen’s Bench Justice erred by only considering the mother’s conduct in moving the child without the father’s consent. Rather, the Court of Appeal clarified that the Queen’s Bench Justice should have considered the question of “custody” first, and “mobility” second. Such a consideration would have required the Queen’s Bench Justice to consider the best interests of the child before any other consideration, including the mother’s actions in relocating the child without the father’s permission.
Ultimately, the Court of Appeal found that the Queen’s Bench Justice erred by failing to choose the correct legal standard. By doing so, the Court of Appeal held that no deference was owed to the Queen’s Bench Justice and the evidence could be considered afresh by the Court of Appeal. On the basis of that evidence, the Court held that it was in the best interests of the child to remain with the mother in Saskatoon. Historically, the Courts have often held that unilateral moves, or “self-help” as it has been termed, can only negatively affect children by virtue of the fact that such actions often: worsen the relationship between parents, prompt reciprocal self-help actions by the other parent, and significantly disrupt the relationship between the child and the parent who is left behind. However, the Court of Appeal was silent as to whether these concerns were considered in their ultimate analysis.
This is an interesting decision for its implications and incentives to parties considering relocation with a child. To see these potential implications, it is useful to consider what may have happened had the mother, at the outset, brought an application to relocate with the child, rather than simply moving. The Courts have somewhat consistently held that, save exceptional circumstances, applications that revolve around the best interests of the child are deserving of full hearings and should not be heard in morning chambers. In fact, the Court of Appeal endorsed this approach in M.R.S. v K.J.S. While the Court of Appeal did not set out the evidence upon which they based their decision, barring exceptional circumstances, it is not unrealistic to assume that any mobility application by the mother would have been set over to a full hearing or trial, and the child would have been ordered to remain in Calgary pending such a hearing.
By choosing to unilaterally move, rather than bringing an application, the mother was able to avoid the potential of the child remaining in Calgary on an interim basis, pending a full hearing of the matter, and effectively secured mobility of the child without having to go through the proper procedural channels. While this matter might ultimately be litigated, as the Court of Appeal directed that the parties make best efforts to comply with the lower Court’s order to apply for expedited trial dates, the reality is that, in the interim, the mother will have created a new status quo for the child that appears to have a reduced involvement of the father in the child’s life. Fundamentally, under this decision a real risk exists that the mother’s disregard for the father’s guardianship rights has resulted in the child’s relocation as being a fait accompli before this matter has even been considered on the fullness of the evidence.
For parties considering relocation or mobility, this decision potentially makes self-help a viable consideration. The incentive to bring an application for mobility prior to relocation loses some of its force in the face of this decision. It is typically recognized that, barring unique or urgent circumstances, a Court will not permit the relocation of a child pending a full hearing as such would involve a determination of the best interests of the child. However, if unilaterally relocating with a child then forces the Court to consider the best interests of the child on a chambers application, parties might start considering the risk as acceptable given the potential for securing interim mobility.