Court Must Make Decision on Where Child Should Live as School Year Approaches feature image

Court Must Make Decision on Where Child Should Live as School Year Approaches

A child’s first-ever day of school can be a significant source of excitement and stress for parents and children alike. For divorced or separated parents, starting a child’s school career can come with added difficulties, especially when parents who share parenting time do not live close enough to accommodate such a schedule when school starts. 

In a recent Provincial Court of Alberta decision, the court was asked to decide which parent a child should live with. The case provides a good summary of how the courts might approach such a situation, including discussions around stepparents and stability in a parent’s work and home. While the decision does not specifically lay out the need to only consider the child’s best interests, which is the only determinative factor in such cases, the court does get around to addressing what is ultimately in the child’s best interests. 

Parenting arrangements forced to change

The parents involved had a child together in 2017. She is now five years old and is preparing to start kindergarten. Until the trial, she had been living with each of her parents on a week-on/week-off basis. When the child was born, each parent lived in Dawson Creek, but the mother relocated to Kamloops while pregnant, eventually making her way to Grande Prairie. At this time, the informal parenting arrangement was put in place, which was later formalized through a court order. 

Grande Prairie and Dawson Creek are about 130 kilometres away from one another. This distance was not an issue before the child started school, but is not possible to maintain such a schedule going forward. Each of the parents wanted the child to live primarily with them, and the court was tasked with determining which location served the child’s best interests.  

Contrasting the parents’ living situations

The father lives in Dawson Creek with his new wife (“MM”). MM came into the child’s life when the child was just eight months old, and MM has acted as a stepparent to the child since that time. The father and MM have a baby, who was just under one year old at the time of the trial.

The court stated that the father and MM have a suitable home, and the father has the stable employment. MM, currently on maternity leave, works in childhood education but hopes to work inside the home once her maternity leave is up. 

The mother has had a more difficult time maintaining steady employment and has moved jobs several times since moving to Grande Prairie. However, these changes were not looked upon negatively by the court since they were usually related to opportunities to take on a better job or COVID-related layoffs. 

However, the court noted that the mother has had to change residences frequently, sometimes due to relationship difficulties. She lives apart from her current partner and is unsure if they will resume living together. 

Nevertheless, the court was careful to point out that the mother does not randomly flip from partner to partner or job to job and that each of her moves and job changes was suitably explained. 

Both of the parents live close to extended family, and she has friends in each place of residence. 

Court focuses on points of interest

The court looked at “points of particular interest of conflict,” starting with the MM’s involvement with the child. The court stated that the mother tried to minimize MM’s role in the child’s life and referred to her as a “third party.” However, the court noted that a 2022 Supreme Court of Canada decision has established that biological connections to a child are of little importance when determining whether a stepparent is fulfilling the role of a parent. 

The court said the Supreme Court of Canada’s decision states “the significance of her position as stepmother hinges not on the lack of biological connection to Ava, but on the extent to which she is a caregiver of significance in the child’s life.” The court found that MM has a significant role in the child’s life and is important in providing care for her.

The court also looked at each of the parent’s preferred schools. The father wants to place the child in an English-language school, while the mother prefers a French-immersion program in a Catholic school. While the father was critical of putting the child in a religious school and said she was already busy enough without having to learn French, the court did not see an issue with either option. 

The court next looked at the child’s relationship with her half-sister. While they would be able to maintain some kind of relationship if the child was to move in primarily with her mother, the court did say that they would have much more contact if living together and that this factor remains “one of considerable significance.” 

While the court did not explicitly lay out its analysis as one that looked at the factors which contribute to the best interests of the child, it did find that it was in the child’s best interests to reside in Dawson Creek with her father and that the factors discussed above played a role in determining her best interests. The court pointed out that while the mother has been the primary caregiver throughout the child’s life to date, the father’s living situation and the stability of the family he started with his new partner positively contribute to the child’s wellbeing.

CONTACT HMC LAWYERS IN CALGARY FOR COMPASSIONATE & TRUSTWORTHY FAMILY LAW ADVICE

The family law team at HMC Lawyers understands the emotional stress of parenting issues that arise after a separation or divorce. We provide clients with responsive, personalized legal solutions suited to their unique needs and ease their concerns. Our firm proudly serves clients in Calgary and throughout the surrounding areas. To schedule a consultation with an experienced family and divorce lawyer, call 403-269-7220 (toll-free at 1-800-480-3534) or reach out online.

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At HMC Lawyers, we offer strategic legal advice. Our breadth of practice experience allows us to promptly handle almost every litigation-related legal issue that may arise, and anticipate potential roadblocks that may delay its resolution. To make an appointment with a member of our team, contact us online or call 403-269-7220

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