Man opposed an order allowing his ex-partner to relocate with their children to Nanaimo
In a recent family dispute, the Alberta Court of Appeal has dismissed a request to challenge an interim mobility order allowing the applicant’s ex-partner to relocate with their two children from Alberta to Nanaimo, BC.
In Szakaly v Smith, 2024 ABCA 171, Braden Szakaly sought permission to challenge the interim mobility order. He argued that the King’s Bench justice erred by finding that any error regarding the burden of proof by the hearing justice did not affect the best interests analysis. He also claimed that justice did not properly consider all necessary factors under the Family Law Act and Divorce Act when conducting the best interests analysis. Furthermore, Szakaly contended that the King’s Bench justice failed to recognize the procedural unfairness created by the status quo established by the interim order.
The Court of Appeal, however, found none of these questions met the criteria for granting permission to appeal. The criteria require showing an important question of law or precedent, a reasonable chance of success on appeal, and that the delay will not unduly hinder the progress of the action or cause undue prejudice.
The court noted that the King’s Bench justice correctly identified the respondent as having the burden of proof and found that despite a misstatement, the hearing justice effectively applied the correct burden. Thus, Szakaly’s question did not present an important question of law or precedent.
The court explained that the King’s Bench justice reviewed the record and confirmed that the hearing justice considered all necessary factors, rejecting Szakaly’s claim that the justice failed to do so. Additionally, the new argument about the notice requirement raised by Szakaly was deemed inappropriate as it was not presented earlier.
Regarding the limited utility of appealing interim orders, the court referenced prior cautions against such appeals, as resources are better used towards achieving a final determination. The King’s Bench justice’s comments did not interfere with the analysis of issues raised by Szakaly.
Lastly, the court addressed Szakaly's concern about procedural fairness at the final hearing due to the interim order. It noted that the King’s Bench justice was aware of these concerns and advised proceeding promptly to a final hearing.
Ultimately, the Alberta Court of Appeal dismissed the application for permission to appeal, emphasizing the importance of focusing on the final resolution in the children's best interests.
