Calgary Relocation and Child Mobility Lawyers
Our Calgary relocation and Child mobility lawyers (403-444-5503) believe a child does not forfeit the love and guidance of two caring and concerned parents merely because of relationship breakdown. Our Calgary relocation and child mobility lawyers also know that Calgary child mobility cases, also known as Calgary Child relocation cases, present as the most difficult cases a family law judge hears. Our Calgary relocation and Child mobility lawyers know that regardless of what decision a judge makes, a child will often spend less time with one parent than they do before the mobility decision. Many times parents focus on the change of surroundings for a child and compare the pros and cons of each competing “place” a child will reside in. Our top Calgary relocation and Child mobility lawyers know that sometimes the status quo and primary factor for the child is not the place where they live but the strength of the nurturing bond they have with a parent. In short, our Calgary relocation and Child mobility lawyers often remind the Court that the status quo is often more about a person than a place.
Calgary Relocation and Child Mobility Lawyers at MacLean Family Law 403-444-5033
In the recent Alberta Court of Appeal decision of McAlpine v Leason, 2016 ABCA 153 (CanLII) the Alberta Court of Appeal reiterated the principles that Calgary relocation and Child mobility lawyers must follow in a child mobility dispute.
The keys to a child relocation case will involve the strength of each parent’s bond, the type of parenting arrangement that exists at the time of the move, the respective care plans of the moving and non moving parent, whether both parents could move to a new location and the arrangement for contact assuming a move occurs. Top Calgary relocation and Child mobility lawyers will reviews the strengths and weaknesses of your case and create an action plan.
Status Quo Can Be Person Not A Place Say Calgary Relocation and Child Mobility Lawyers
Calgary relocation and Child mobility lawyers have extracted from the key parts of the McAlpine v Leason decision:
[1] This is a mobility case. The issue is whether it is in the best interests of an (almost) seven-year-old girl to have her primary care transferred from her mother to her father in Calgary rather than moving with her mother to Winnipeg, given her mother’s decision to relocate from Calgary to Winnipeg. The trial judge ordered this change and denied the mother’s application to take the child with her. The appeal also demonstrates how the effluxion of time can have serious consequences, leading to a change in circumstances that makes the decision under appeal less sustainable, and requires us to consider what a court of appeal can or ought to do in those circumstances.
[4] The trial judge found both parents had a good relationship with the child. The trial judge was favourably impressed with the father’s parenting plan in contrast to that of the mother. The father’s plan involved the mother flying several times a month as a WestJet employee to Calgary to parent the daughter and to live, free of charge, in accommodation provided by the father, in a basement suite in a rental property he owns next door to his own home.
[6] The main error here is a variant of the analytical problem identified by this Court in Christmas v Christmas, 2005 ABCA 213 (CanLII), 367 AR 172, Spencer v Spencer, 2005 ABCA 262 (CanLII), 257 DLR (4th) 115 and RJF v CMF, 2014 ABCA 165 (CanLII), 575 AR 125. This Court has repeatedly cautioned against approaching the best interest test by comparing the effect on children if they are permitted to relocate with the custodial parent versus maintaining the status quo (i.e. the children remaining with the custodial parent in their current location). Approaching the issue in that manner ignores a key component of the Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, 134 DLR (4th) 321, test – the effect of removing the child from the care of his or her primary caregiver after that parent moves.
[7] The trial judge concluded that the child would be harmed by the proposed move, since it would result in reduced contact with one parent or the other: para 89. He also commented that the existing arrangement was working well and that disrupting it might harm the child: para 131. Rather than wrestling fully with the impact on the child of being separated from her mother, the trial judge focused on what he saw as the inevitability of the child suffering harm as a result of the impending move and sought to minimize the number of things that would change for her.
[11] It is an error to presume, as the trial judge seems to have done here, that it is never in the best interests of a child to move with his or her primary caregiver. As this Court recognized at para 55 of MacPhail v Karasek, 2006 ABCA 238 (CanLII), 273 DLR (4th) 151, a move will always result in decreased contact with one parent. The trial judge’s approach is really another way of saying that it would be best for the child to maintain the status quo, without considering the effect on the child of staying in her current location without the primary caregiver. Although the trial judge commented that the status quo was off the table, his approach to the relevant factors suggests otherwise. This is the kind of error discussed in MacPhail and the other cases cited above, and it is an error in principle.
[14] As noted earlier, the trial judge failed to properly consider what the impact on the child would be if she were removed from the care of her mother for more than 50% of the time. The evidence makes clear it would be significant. The impact on the child were she to be removed from the care of her mother and be without her new sibling makes this a more pressing concern. This Court has noted the importance of the sibling relationship and the need to consider it in assessing the best interests of the child on a mobility application: MacPhail at para 33.
16] In the circumstances, we are satisfied the decision below reveals serious errors in principle. Having regard to the record before us and the fresh evidence, we conclude that the child’s best interests are best served in maintaining a close tie with her parents and her new sibling. The best way of promoting that is by allowing her to move to Winnipeg with her mother. We allow the appeal on the issue of mobility, allowing the mother to move to Winnipeg with the child on the following conditions: Within 15 days of the date hereof the parties agree on a comprehensive parenting plan that includes regular and consistent visitation with the father.
Calgary relocation and Child mobility lawyers help guide parents to a solution that is in the best interests of their children.
Meet with our founder Lorne N. MacLean,QC if you need the help from our top Calgary relocation and Child mobility lawyers. Call us now at 403-444-5503.
