There can be many difficult things to work through when parents go through a divorce or separation. Disagreements over how decision-making responsibility (custody) and parenting time (access) matters will be resolved can leave one parent feeling as though they “lost” out on an opportunity to see as much of the child as possible. These feelings can be amplified when one parent wants to move a significant distance from the child. 

In family law situations involving children, the children’s best interests are always the primary consideration. A decision of Alberta’s Court of Appeal dealt with a situation where a mother believed a judge had considered factors outside of her child’s best interests. 

Mother looks to move from Alberta to Ontario

In Larose v. Dorie, the mother and father were in a common-law relationship in 2014 and had a child in 2015. They have not lived together since the child’s birth, and while there has been a great deal of conflict between them, they both remain in Alberta. The mother has had primary parenting time of the child since he was born, as well as her older child from another relationship.

The mother told the court she was laid off from her job as a licensed practical nurse in March 2021 and has since been unemployed. In May of that year, she told the father she intended to move from Alberta to Ontario and did so in June 2021, at which time she found full-time employment within her profession. The mother’s parents and her older child’s family also lived in the same Ontario town.

The father remained in Alberta and said that although he felt the mother had refused to facilitate his parenting time, he had built a relationship with the child.

 

Hearing judge denies application to relocate child

At the case’s initial hearing, the mother requested permission to relocate from Alberta to Ontario with the child. She also sought sole decision-making responsibility and the ability to obtain a passport for the child without requiring the father’s consent.

The hearing judge denied these requests and advised the mother that the child would be placed into the father’s sole care if the mother chose to remain in Ontario. The judge found that the mother’s evidence had been “somewhat misleading” as she had inaccurately stated that the father never took the child for medical or personal appointments. 

The court was also concerned with the mother’s failure to facilitate the father’s court-ordered parenting time. The hearing judge found that the mother had “actively sought to limit the father’s parenting time and involvement”. The court determined that allowing the mother to relocate with the child would lead to irreparable harm to the child’s relationship with the father.

 

Mother claims hearing judge failed to properly consider child’s best interests

The mother appealed the hearing judge’s decision. She stated that the judge had erred by failing to consider the effect of separating the mother from the child and his older half-sibling if he could not relocate with her. The mother argued that the hearing judge should have taken a “forward-looking” analysis of the child’s situation to determine his best interests. She felt the judge focused too much on the status quo, which would be ending once she moved to Ontario, and placed too high an emphasis on the father’s relationship with the child.

 

Court of Appeal finds hearing judge took appropriate approach to determining child’s best interests

The Court of Appeal found that the hearing judge properly considered the fact that the mother had been the child’s primary caregiver, as well as the child’s close relationship with his older sibling. The Court also noted that the hearing judge had assessed the supports available to the mother through her immediate and extended family in Ontario.

However, the Court of Appeal explained that these were only some factors the hearing judge was required to assess. Overall, the hearing judge had properly applied an approach that considered the “greatest possible protection of the child’s physical, psychological and emotional safety”. The Court noted that the mother’s behaviour in denying the father’s parenting time also affected the child’s best interests.

 

Considering effect of relocation on father’s relationship with child is “forward-looking approach”: Court of Appeal

Concerning the mother’s claim that the hearing judge failed to take a “forward-looking approach” in denying the mother’s requests, the Court of Appeal found the opposite. Considering the impact the move would have on the child’s relationship with the father was, the Court found, forward-looking, particularly as the hearing judge found that “the loss of regular contact with the father would be a significant loss and detriment” to the child. The Court found no error in the hearing judge’s finding that this factor weighed heavily in the father’s favour. 

As a result, the mother’s appeal was denied. While the mother is free to remain in Ontario, the child was ordered to stay in Alberta. 

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.