Court denies mother's application to relocate child despite family violence by father

Mother's new partner had been found to commit domestic abuse; father's acts not directed at child

Court denies mother's application to relocate child despite family violence by father
Despite family feud, relocation considers best interest of the child

The Court of Appeal of Alberta has ruled that a child was not allowed to relocate with the mother despite a finding of family violence by the father, because the mother’s new partner also had a record of domestic violence and the father’s acts were not directed at the child.

In MBF v MNH, 2022 ABCA 42, MNH and MBF were the mother and father of AA, respectively. They frequently fought, having engaged in concerning behaviour in the presence of the child, AA. Claiming that it was in the child’s best interests, MNH filed an application to relocate AA from Edmonton to Saskatoon where she lived with her new partner, CW, and their infant child. AA’s grandmother, with whom he had a close bond, also lived in Saskatoon. MNH further asserted that AA’s father psychologically abused and harassed her, and that AA was not safe with him.

MBF, on the other hand, asserted that it was in AA’s best interest to remain in Edmonton under his primary care. AA had close bonds with his stepsister and paternal grandparents. MBF also asserted that MNH posed a risk to AA, having violated an interim parenting order that prohibited contact between AA and CW, who had a record of domestic violence.

The chambers judge dismissed the application to relocate and granted MBF primary custody of the child. On appeal, MNH alleged that the chambers judge misapprehended the facts on family violence and MBF’s controlling behaviour.

The appellate court disagreed.

After assessing MNH’s evidence of MBF’s family violence, the chambers judge concluded — and the appellate court agreed — that at one point, MBF’s actions had crossed the line. “To the extent that [MBF] communicated sexually explicit [materials] about [the mother] and to the extent that these communications were intended to cause [the mother] to fear for her safety, this constitutes family violence,” said the chambers judge.

However, the chambers judge ultimately found that while MBF’s actions were “reprehensible,” none of them were directed towards AA. MBF could still appropriately care for and meet AA’s specific needs and any future actions could be prevented by court order, said the chambers judge. Further, while she was careful to separate third-party evidence, the chambers judge also concluded that AA should not have any contact with CW until a court was satisfied that he did not pose a risk to the child.

The appellate court determined that these findings were based in evidence. MNH essentially contested the weight given by the chambers judge, which is “not the role of this court,” said the appellate court.

As to MBF’s controlling behaviour, the appellate court found that the only act MNH asserted as “controlling” was preventing AA from relocating to Saskatoon. As correctly ruled by the chambers judge, MBF “had the right to refuse the request. It cannot be characterized as controlling,” said the court.

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