When a family undergoes significant changes, such as divorce or separation, geographical relocation can profoundly impact the lives of all involved, particularly children. From job opportunities to personal preferences, While the reasons for relocation can vary widely, from employment opportunities to personal preferences, there are various legal considerations to be aware of before planning your move. Conversely, parents who do not have primary decision-making responsibility and parenting time may struggle with fears of losing meaningful contact with their children or facing logistical hurdles in maintaining their parental role across geographical distances. 

This blog will provide an overview of the factors that can influence relocation decisions, the legal frameworks governing such moves, and the courts’ pivotal role in determining the child’s best interests amidst parental relocations.

What is Mobility?

Sometimes referred to as “parental relocation,” mobility in the context of family law refers to a situation where one parent moves or seeks to move to another area, which may impact the amount of parenting time the other parent can exercise. Such a move can sometimes substantially impact the child’s relationship with the other parent. The issue can become highly contentious if the other parent does not agree to such a move. 

For a court to grant a relocation request, a parent must file a mobility application with the court. The court will then decide based on the evidence presented before it in light of the “best interests of the child” in accordance with Alberta’s Family Law Act and the federal Divorce Act. When determining the best interests of the child, a court will consider: 

• The needs of the child;
• The child’s views, if appropriate;
• The history of care for the child;
• Any history of family violence; 
• The child’s relationships with parents, guardians, and other important individuals in their life. 

Father Seeks to Restore Appeal to Mother’s Successful Relocation 

In the case of MM v AB, the mother successfully applied to relocate to Saskatchewan with the parties’ three minor children following a one-day trial. The father appealed the decision on July 25, 2023. However, it was struck that he failed to file the appeal record on time. He subsequently sought to restore his appeal. When deciding whether to restore an appeal, a court will consider five factors, specifically:

1. arguable merit to the appeal;
2.  the explanation for the defect or delay that caused the appeal to be taken off the list;
3. reasonable promptness in moving to cure the defect and have the appeal restored;
4. intention in time to proceed with the appeal; and
5. potential prejudice to the respondents (including the length of the delay).

No single factor is determinative in this analysis, nor is it necessary for a party to meet all five factors. Instead, the factors must be assessed together in order to determine whether restoring the appeal is in the interests of justice. In this case, the mother did not oppose the fact that the father met the third and fourth factors. However, she claimed that the father’s arguments lacked merit as he did not have a good excuse for being late in filing his appeal and that she and the children would suffer prejudice.

Trial Judge Misapprehended Evidence Which Impacted Best Interest Analysis

The Court acknowledged that the bar for arguable merit was low, as the father was only required to establish that his appeal was not frivolous or hopeless. Given that the trial evidence came from affidavits and oral testimony from the parties, the mother argued that the father’s appeal was “doomed to fail” as it was “essentially a request to re-weigh the evidence,” which was not the purpose of the Court. 

However, the Court found that the summary trial judge “misapprehended evidence in that she found that the family moved from Saskatchewan to Alberta in 2015, when in fact the three children in question lived in Alberta their entire lives and in the same home in Leduc since 2015.” The father argued that this error affected the trial judge’s best interest analysis, which satisfied the low threshold of arguable merit.

Court Accepts Father’s Reason for Appeal Filing Delay

With regard to the filing delay, the Court noted that this was due to counsel error, although “a mere slip or inadvertence on the part of counsel will not generally bar restoration of an appeal unless other factors predominate.” When assessing a delay, the interest of justice “is rarely served by deeply probing the proffered explanation for the defect or delay.” As such, the Court was satisfied with both the explanation for why the appeal was struck and was satisfied that the father’s counsel “moved promptly to cure the defect and have the appeal restored.”

In addressing the mother’s argument regarding prejudice, the Court appreciated that the mother expressed financial and emotional stress. However, it went on to note that this is not a consequence of the father’s appeal being struck and would have been present had the appeal deadline been met. 

Court Grants Father’s Leave to Appeal

The Court generally stated that in “parenting disputes, nothing matches a relocation application, where one parent believes (rightly or wrongly) that the move is or is not in the children’s best interests, and one parent faces the prospect of drastically altered time with their children. Relocation applications have the potential to dramatically shift the parental landscape and impact the lives of the children, making them amongst the most challenging of family law matters.” It went on to note that there is an automatic right to appeal such decisions and the Court “can only hope that the parent appealing focuses on the children’s best interests, considers the appeal carefully, and if unsuccessful, accepts the result with grace.”

In light of all factors considered, the Court determined that restoring the father’s appeal was in the interest of justice, particularly given that the delay was minimal. However, that was no guarantee that his arguments would succeed in the long run. The Court noted that although this would be stressful, stress is an inherent by-product of the procedure and that it was ultimately in the interest of justice to let the father proceed to a full review of the trial decision by the Court of Appeal. 

Calgary and Strathmore Family Lawyers Advising on Relocation and Mobility Issues 

Navigating issues stemming from separation and divorce can be complex without the added stress of financial and emotional considerations, particularly when it pertains to matters such as parenting arrangements and relocation of children. If you are considering or going through a separation and have questions about children, support claims, or property division, the skilled family lawyers at Getz Collins and Associates can help. We work closely with clients to develop tailored legal solutions based on their unique needs. To schedule a consultation with a team member to learn how we can assist you, don’t hesitate to contact us online or at 587-391-5600.