Addressing Primary Custody When Parents Live Across The Country From One Another feature image

Addressing Primary Custody When Parents Live Across The Country From One Another

Disagreements over with whom a child should live when parents divorce or separate can be difficult if both parties live in the same city. However, when the parents live on different sides of the country, an issue like this can have greater emotional stakes than it would if the parents live nearby one another. A recent decision from the Court of Queen’s Bench of Alberta looks at a situation where the parents of a child lived on opposite sides of the country and each sought primary custody.

Thousands of kilometres between parents

The parents were in a relationship from October 2017 until December 2019. The child was born in May 2019. The father has lived in Edmonton his whole life. The mother moved there about 10 years ago in order to obtain employment. She still has family in Newfoundland and returned there after the first four months of her pregnancy in order to be with her mother and other supporting family members.

The father travelled to Newfoundland towards the end of the pregnancy and then returned to Edmonton for work. He went to Newfoundland again to be there for the birth of the child. The family moved back to Edmonton in June 2019. However, in December of that year, the parents separated, and the mother moved back to Newfoundland with the child later that month.

Both parents want the child to live in their home province

The parents disagreed over whether the mother let the father know that she intended to stay in Newfoundland after leaving Edmonton. An order providing the father with Facetime access as well as access in Newfoundland in the summer months was issued in July. The father took advantage of this time and travelled to Newfoundland in July.

What are the best interests of the child?

The child’s best interests are the key in determining applications for guardianship and a parenting order. The court referred to Section 18(2)(a) of the Family Law Act in stating,  the Court shall ensure the greatest possible protection of the child’s physical, psychological and emotional safety.”

The court noted that the mother has had primary care of the child since its birth and has a support network at home in Newfoundland. The child is very young, but the court said it appears as though the child’s physical, psychological, and emotional needs are being met while in the mother’s care. While the father’s concern about missing out on milestones such as “firsts” is legitimate, the court noted that there is no jeopardy to the child because of that.

Each parent has indicated they wish to teach the child about each other’s cultural heritage, with the mother being First Nations, and the father being of Ukrainian heritage.

The mother is currently taking courses to work in accounting and is able to care for the child while she studies. The court found that she will be in good financial condition to care for the child upon starting work in her field.

The importance of cooperation between parents

The court noted that each of the parents are caring and loving in their interactions with the child, but that there could be an improvement in how they are able to communicate and cooperate with each other. The court described the situation, writing, “Each parent deposes that the other parent has been confrontational and argumentative in their ongoing communications, and this has some impact on the ability for the father to engage in Facetime with the child. The father is of the view that the mother is trying to freeze him out of any meaningful relationship with the child, although this is denied by the mother.”

Ultimately the court concluded that the father’s application to have the child returned to Edmonton should be dismissed, finding it would have a greater adverse impact in being separated from his mother than being placed in the primary care of his father.

If you are going through a separation or divorce, the Family law team at HMC Lawyers we will help you make decisions and finalize agreements that are in the best interests of your children. We understand that it is often possible for parents to negotiate and agree on child custody arrangements. Although we are capable advocates in the courtroom, we know that the best outcome is more often achieved through finding a solution that is mutually beneficial to you and your ex, and in coming to that solution amicably.  For advice about child custody and access matters, contact us online or call 1-800-480-3534.




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