One of the most difficult family law issues that may arise following the divorce or separation of a couple with children is when one of the parents wants to move with the child to a faraway city or a different province. When the parent not looking to move has parenting time with the child, a move could signify a change in how that parenting time is accessed. In most cases, regular parenting time would not be feasible for the parent who doesn’t move, and as a result, they might have to use their parenting time at less regular intervals, though for more time each visit. 

There are a number of factors the courts consider when a parent makes a request to move across the country, and a recent decision from the Court of Appeal of Alberta highlights how these questions are approached and whether one factor can outweigh others enough to influence the court’s decision.

Mother looks to move from Alberta to Ontario with child

The mother and father were involved in a common-law relationship for six years before separating. While together, they had one child, a daughter born in 2017. They separated a few months before the child’s birthday in 2018. Following the separation, the child lived primarily with the mother but enjoyed a healthy relationship with the father.

The parents signed a consent order in December 2018. The order granted the father parenting time every other weekend for one night and on Tuesday and Thursday evenings. The relationship between the parents was one with high conflict, and a no-contact order was issued for them, with drop-offs and pickups for the child taking place at a neutral location.

In October 2020, the mother applied to move to Ontario with the child. A trial was held in January 2021. The trial judge determined that the most important question to ask before arriving at a decision was which place of residence would be in the child’s best interest. 

The father comes from a Jamaican background and told the court that he was in a unique position to help the child navigate issues of racism that she will encounter. While the trial judge accepted this, it said that factor was not the only one that contributes to the child’s best interests. Ultimately, the judge ruled in favour of the mother, approving her application to move.

Father appeals, stating a move is not in the best interests of the child

The father’s appeal is rooted in the trial judge’s application of the factors used to consider the child’s best interests. He told the court his parenting proposal was not properly considered and that the trial judge failed to give adequate weight to issues related to race, culture, and heritage. 

The court looked at the trial judge’s analysis and determined the judge took into account the roles that both the mother and father played in the child’s life. The court was satisfied with the trial judge’s consideration of the importance of the child’s relationship with the father, both in a father/daughter sense and how it relates to the child’s race and heritage. During the trial, the mother acknowledged that the father could provide support and guidance that she could not as a black individual. The mother did state that the community they were moving to did have a strong community of people from the Caribbean and that the community would be able to assist in matters related to race and heritage. She also told the court that she would encourage the child to work with the father on these matters.  

In addition, the father’s heritage was not the only one that required consideration. The mother, who comes from a French-Canadian family, wanted to expose the child to that part of her background. The extended family and community she would have access to in Ontario would allow that. 

When it comes to looking at the best interests of a child, the court wrote that no single factor is necessarily more important than any other. Furthermore, different judges may give different levels of weight to each factor that determines the child’s best interests. While one judge may feel that race and heritage deserve more weight than any other, a judge cannot be found at fault if they take a reasonable approach to weighing each factor. 

The court reiterated that the child had lived primarily with the mother for her whole life and agreed with the trial judge that it would be in the child’s best interest “to remain with the parent with whom she has lived primarily for her whole life, particularly given her young age.” The court was also satisfied with the parenting plan put in place by the trial judge, which required the parents to work together to develop a plan that would ensure the child had access to the father.

Calgary Family Lawyers Assisting With Relocation Matters in Family Law

At HMC Lawyers we have a dedicated family law team that understands the nuances of family law. We also appreciate the emotional toll that a separation or divorce can have on a family and work with our clients to find solutions.  We have an experienced team of litigation lawyers to help in situations where going to court is necessary. If you have any family law concerns and are curious about how our team may be able to help, please don’t hesitate to reach out to us online or by telephone at 1-800-480-3534.