Relocation (or “mobility”) can be a difficult decision with significant impacts on the child and the parties involved. A relocation decision requires a careful and thorough analysis of the child’s best interests. Relocation can often be a contentious issue, so parties may be involved in an arbitration or court application to address the matter. While an arbitrator can make a binding decision on relocation, this is reviewable by the court, as was the case in AMLC v. BDC, 2023 ABKB 179.
In the AMLC case, the mother successfully appealed the arbitrator’s decision to deny relocation of the child. In this post, we will discuss how the court came to this decision, including assessing how the arbitrator applied the best interest of the child factors. This post will provide important considerations for parties involved in mobility applications.
Generally, the court defers discretionary decisions involving custody and access. On appeal, a court can only intervene if there has been an error of law or a material error in understanding the facts. A material error would involve situations where a decision-maker ignored, misconceived or forgot evidence in a way that impacted the decision.
For relocation decisions, an appeal court would be very deferential to the decision-maker, as the decisions highly depend on the case’s specific facts. This means that generally, it is up to the original decision-maker to weigh the facts based on the evidence presented to them, and appeal courts will respect the decision and not intervene unless there has been an error in the application of legal principles, or a material error in the analysis of the facts.
Courts have noted that appeals are not meant to provide an opportunity to re-hear a case that has already been decided.
In the AMLC case, the parties were married for four years. They had a four-year-old child, and both parties shared parenting responsibilities. The mother wanted to relocate with the child from Edmonton to Manitoba. The parties were unsuccessful in mediation but entered into an agreement for an arbitrator to make a binding decision regarding relocation of the child. The arbitration agreement included a term that allowed the parties to appeal the decision in court if there was an error of law, mixed law and fact, or fact. The arbitrator decided that relocating to Manitoba was not in the child’s best interests.
The mother appealed the arbitrator’s decision. She claimed that the arbitrator did not properly apply the best interests of the child factors as per s. 16(3) of the Divorce Act. Also, she claimed that the arbitrator did not conduct a full and sensitive inquiry into the additional statutory factors for relocation under s. 16.92 of the Divorce Act, which are reproduced below:
(a) the reasons for the relocation.
(b) the impact of the relocation on the child.
(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons.
(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside.
(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
The decision-maker is not to consider whether the relocating party would relocate without the child or choose not to relocate.
The arbitrator denied the mother’s application to relocate with the child, as the parties were both significantly involved in the child’s life, and the mother’s proposed parenting plan would not allow the father to play an active role in the child’s life. The arbitrator found that the mother’s proposed parenting plan prioritized the child’s involvement in the Métis and Francophone community over the father’s role in the child’s life.
The court found that the arbitrator did not properly assess the mother’s sister’s evidence. The sister’s affidavit spoke to the mother supporting the child’s relationship with the father, including facilitating his presence in the home where the mother intended to relocate with the child. The court found that the arbitrator erred in concluding that the relocation with the mother would limit the father’s role in the child’s life because, according to the arbitrator’s reasons, she did not provide evidence concerning the importance of his role in the child’s life. The arbitrator ignored the fact that the father did not provide evidence on the importance of his role in the child’s life, and focused on how the mother did not provide this evidence, even though she had provided evidence on how she would facilitate their relationship if the relocation was granted. In her affidavits, she clearly deposed that she would do anything to support the child’s relationship with the father, as the child loves the father and needs him in his life, and she wanted them to have a good relationship in the long term. This did not match the arbitrator’s finding that the mother’s proposed relocation would significantly limit the father’s role in the child’s life.
The court also found that the evidence did not support the arbitrator’s conclusions regarding the mother’s insufficient parenting plan and insincerity in trying to facilitate a relationship between the father and child. The court found that the arbitrator erred in finding that the mother, in filing the relocation application, was insincere in her efforts to maintain the child’s relationship with the father if relocation was granted. The court found that she was simply following the statutory procedures in filing, which should not be a basis for finding that a relocating party is not willing to facilitate the child’s relationship with the other parent.
Also, the mother’s proposed parenting plan was not significantly different or limiting compared to the plan presented by the father. The main difference was that the father’s plan involved shorter, but more frequent visits, whereas the mother’s plan involved lengthier, but less frequent visits. Both plans proposed by the father and mother involved approximately the same number of days for the father to have contact with the child. Therefore, the evidence did not match the arbitrator’s finding that the mother’s plan would significantly limit the father’s ability to play a key role in the child’s life.
The court also found that the arbitrator misunderstood the evidence concerning the impact on the child’s cultural upbringing and heritage, one of the best interests of the child factors. Despite the mother’s uncontested evidence regarding the differences, the arbitrator did not appear to understand the distinction between the different Métis cultures in Manitoba (Red River) and Alberta. The mother’s upbringing involved Red River Métis traditions, and she submitted that the child would have the opportunity to be immersed in the culture if the child were to relocate to Manitoba. The arbitrator concluded, however, that the mother refused to consider having the child participate in Alberta Métis cultural programs if the child stayed in Alberta. The court found that the arbitrator misunderstood or ignored the fact that Red River Métis culture in Manitoba was different from Alberta Métis culture, so the cultural programs in Alberta would be an insufficient alternative. Finally, there was little evidence from the father concerning his Scottish heritage and how this would affect the child’s cultural upbringing if the child were to relocate.
For these reasons, the court set aside the arbitrator’s decision.
Relocation of a child can be a very contentious matter. As it primarily depends on the unique circumstances of the case, you should speak with one of our family law lawyers at Mincher Koeman who are experienced in assisting parties in mobility applications when one party wishes to move with the child. Our Calgary family law lawyers are dedicated to finding the best resolution for you and your children after your divorce.
To book a consultation, please contact us online or by phone at 403-910-3000.
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