Mother's allegations of sexual misconduct unproven; father had entitlement to parenting time
The Alberta Court of Appeal has upheld an order directing a mother to return her children to the same area where their father, who allegedly sexually assaulted them, still lives.
In YZVM v. DTT, 2022 ABCA 87, the mother and her two minor children left the family home in Hythe, Alta. The mother claimed that she had witnessed the father engaging in sexual conduct with the children. She moved her children to Grande Prairie, Alta., and obtained an Emergency Protection Order (EPO) against the father.
The RCMP and Children’s Services conducted investigations, but no charges were filed. The court decided to terminate the EPO and granted an interim order allowing the father to have unsupervised parenting time on every other weekend plus one day a week.
The father sought a court order directing the children to return to Hythe, asserting that it was in the best interests of the children to reside there since they had a vast support network there and the eldest child had previously attended school in there. A chambers judge granted the father’s application and ordered the mother and the children to return to Hythe until the court had an opportunity to hear and decide any further action brought by the parties.
The mother appealed the interim order, alleging that the judge disregarded the best interests of the children. While the appeal was pending, the mother also filed an application to relocate with the children.
The court found that the mother was at fault for unilaterally moving the children without notice to the father, as a recent amendment to the Divorce Act required the person who intends to relocate a child of the marriage to notify any other person who has parenting time with the child. The court said that the purpose of the notice requirement was to preserve the status quo while also providing the parties with the opportunity to discuss the proposed relocation and attempt to resolve issues.
The court underscored that the mother had moved the children without the court’s permission and without notice to the father. In addition, while the father’s application was pending, the mother failed to seek an order permitting the children to move to Grande Prairie.
According to the court, these circumstances showed that that the relief sought by the father was aimed at redressing the mother’s unilateral move and restoring the status quo. The court concluded that it was only proper for the chambers judge to grant such relief by directing the mother to return the children to Hythe. The court dismissed the mother’s appeal.
