Guest Blog Post: Max Blitt, KC (Calgary, Alberta, Canada)

On November 29, 2022, the Court of King’s Bench in Lethbridge, Alberta in M v I Action #4806-022768 (unreported-publication ban) permitted a Mother (“I”) to permanently relocate her two children A (5 years of age) and S (2 ½ years of age) to Florida. The mother was originally from Florida and met the father at a fitness convention in Florida in 2016. The father resided in Alberta where he had numerous businesses. After travelling back and forth between Florida and Alberta, the mother settled in Alberta, and, after signing a Prenuptial Agreement, married the father in June 2019 in Alberta. The parties separated in May 2021. The marriage was tumultuous, with the mother accusing the father of emotional abuse. The father had sponsored the mother to enable her to retain immigration status in Canada. That sponsorship ended when the father started divorce proceedings. Matters came to a head when the father asked the maternal grandmother whether she would take the mother and the children into her home in Florida, to which the response was yes. The mother left Alberta with the children for Florida with the consent of the father. There was conflicting evidence as to whether the move could be permanent or temporary. The mother and children remained in Florida for a year. Approximately 6 months after the mother left, the father brought an application in Alberta to compel the return of the children. The Lethbridge court granted an order to that effect but allowed the mother and children to reside anywhere in Alberta she chose, which ended up being over a 1000 kms from where the father lived. Support was also ordered in favor of the children and the mother. The father also launched a Hague Abduction Convention application in Florida to compel the return of the children. Both parties also appealed the Lethbridge court order to the Alberta Court of Appeal, but before the appeal and the Florida Hague application could be heard, the parties reached an agreement to secure the return of the children voluntarily to Alberta with both parties discontinuing their appeals. The matter then went to a trial in November 2022 to determine mobility. The trial court was tasked with interpreting the new Divorce Act, which involved determining who had the burden of proof on relocation, the primary parent (the mother), or the access parent (the father, who had extensive access). The Court of King’s Bench analyzed the new sections 16 (3) and 16.92 (1) which set out the factors to determine the test of what is in the best interest of the children of the marriage. In the end the Court held that it was in the best interests of the children to be able to move to Florida. The Court also awarded the mother $26,000.00 in costs. The father has appealed.