AMLC v BDC (2023)
The parties separated after five years of living together and four years of marriage. About one year post-separation the mother notified the father she wanted to move with their four-year-old child to Manitoba. The father objected to the relocation, and after failed mediation the arbitrator ruled against the relocation, leading to the present appeal by the mother.
Her appeal raised the following legal issues: 1.) Did the arbitrator err in considering the best interest factors in the Divorce Act 16(3)? 2.) Did the arbitrator fail to fully consider the relocation-specific factors in section 16(92)? 3.) Was there reasonable apprehension of bias against the mother? The father maintained that the arbitrator’s evaluation was proper and that the decision should stand.
The Justice found the arbitrator erred in assessing 1.) the strength and nature of the child’s relationship with each parent, 2.) each parent’s willingness to support the child’s relationship with the other parent, and 3.) the child’s cultural upbringing. These errors affected the arbitrator’s overall evaluation, justifying the partial overturn.
Some key takeaways are:
- In this case, properly weighing the child’s cultural upbringing was an important consideration.
- The filing of a Notice of Relocation should not be taken as evidence that the relocating parent is unwilling to support the development and maintenance of the child’s relationship with the non-relocating parent.
- While Gordon rejected a legal presumption in favour of either party, the Divorce Act now contains a burden of proof where there is a preexisting parenting order, award or agreement: s. 16.93.
- And although Gordon restricted whether courts could consider a moving party’s reasons for relocating, this is now an express consideration in the best-interests-of-the-child analysis: s. 16.92(1)(a).
- Section 16.92(2) now provides that trial judges shall not consider a parent’s testimony that they would move with or without the child.
- Furthermore, ss. 16(3)(j) and 16(4) of the Divorce Act now instruct courts to consider any form of family violence and its impact on the perpetrator’s ability to care for the child.
- The mother’s claims of bias did not have a foundation. None of the Appellant’s oral submissions regarding bias rest on substantial grounds or compelling evidence. A reasonable and informed person, after carefully considering the situation, would not believe the arbitrator was unfair, consciously or unconsciously, based on the reasons given by the appellant.
Relocation cases are the hardest to decide. This practical case highlights different factors for arbitrators and counsel advancing or defending a relocation case to consider when performing a thorough relocation evaluation.
