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Calgary Children’s Best Interests Family Lawyers
In the recent Alberta Court of Appeal decision in Csorba v Csorba, 2017 ABCA 190 the Court of Appeal said the focus in a custody and mobility case is solely the best interests of the child and the fault or rash actions of a parent in moving away should not distract the Court from this prime directive. Our Calgary Children’s Best Interests Family Lawyers note the best practices for Calgary family lawyers and their clients is to get a court order or at least provide ample notice before moving away but where the child’s best interest dictate the move should be allowed “self -help” actions may be overlooked in Alberta. Our respected senior Calgary divorce lawyers handle high conflict divorce and family law cases involving substantial financial matters and difficult parenting time cases.
Calgary Children’s Best Interests Family Lawyers Explain Court Decides Custody First Then Mobility
[1] The appellant and respondent were married in July of 2009 and ceased cohabiting on September 1, 2014. They have one child together, aged seven. There is no extant order respecting the custody or parenting of the child.
[2] On January 1, 2017, the appellant moved from Calgary, Alberta to Saskatoon, Saskatchewan, taking the parties’ child with her.
[3] The respondent applied to have the child returned to Calgary, Alberta or in the alternative, for primary care of the child with him in Calgary, Alberta. On January 30, 2017, the chambers judge ordered that the child and the appellant return to Calgary, Alberta pending a trial concerning the “matter of mobility” of the child.
[9] In our view, the chambers judge erred in law by considering only the appellant’s conduct in moving to Saskatchewan without first informing the respondent of her intention to do so and by failing to select, or apply, the “best interests of the child” test before making the order appealed.
No Prior Custody Order Calgary – Children’s Best Interests Family Lawyers
[10] In determining the respondent’s application for custody, the court ought to have considered custody first, and mobility second; the principles in Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, 134 DLR (4th) 321 are applicable when custody and mobility are in question, even if there is no prior custody order in place as was the case here. Beckedorf v Beckedorf, 2008 ABCA 409 (CanLII), 446 AR 32 is instructive.
[11] In the present case, the respondent plainly sought an interim custody order under subsection 16(2) of the Divorce Act, RSC 1985, c 3 (2nd Supp).
[12] Sub-section 16(8) of the Divorce Act is mandatory and unambiguous: “In making an order under this section [section 16], the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.”
[13] No presumptions or default positions regulate a decision as to custody and access. “The sole determinant is the best interests of the child. While other principles may be considered, particularly where both parents are equally suitable, they must be viewed and determined from the standpoint of the best interests of the child”: Cavanaugh v Balkaron, 2008 ABCA 423 (CanLII) at para 12, 446 AR 302; Divorce Act at s 16(8).
[14] Put another way, the relevant inquiry in a child custody case is the best interests of the child, an inquiry completely unaddressed in the court below.
[15] Had the chambers judge selected the correct legal standard, namely the best interests of the child, as this Court has done, the only determination that is warranted on the evidence presented is that the child ought to remain with her primary caregiver, the appellant, in the interim period pending determination of a mobility / custody application under s 16(1). We so order.
Calgary Children’s Best Interests Family Lawyers 403-444-5503
Calgary Children’s Best Interests Family Lawyers of MacLean Law are standing by to assist you in these challenging and often confusing legal cases. Pick up the phone so your child and yourself are not prejudiced and so your child’s best interests are protected. Call us today at 403-444-5503.
