Jurisdiction and considerations for “return-child” interim mobility decisions

Valenzuela-Sone v Barnachea, 2023 ABKB 495, pertained to a family with three children including 16 year old twins.

In the spring of 2023, the father discovered that it was the mother’s intention to take all children with her to Chile and then file for divorce in Chile. The father filed a claim for divorce in May 2023.

In June 2023, the mother moved with the twins to Chile and did not provide the required 60 days notice set out under the Divorce Act.

The father brought an urgent application for return of the children to Canada.

In this decision, Justice Lema clarified that notwithstanding that the children may be in a different country, Canadian courts have jurisdiction to grant an order requiring return of children who have been internationally relocated without notice to the other parent. In such cases, the order will be an interim order, pending a full blown mobility hearing.

Noting that the mother’s conduct was a flagrant breach of the legislation, Justice Lema Justice Lema ordered the immediate return of children to Edmonton, where they were to reside and remain until the mother followed the proper protocol.

Justice Lema noted that in determining interim return-child application, the focus is not on whether relocation to Chile is in children's best interests; but rather the focus is on deciding whether mother should be obliged to follow the legislated relocation process.

Furthermore, when the question is where the children should be in the meantime, there is, in most cases, an inherent best-interests-will-be-maintained guarantee in returning children to their habitual residence, pending the outcome of the relocation motion.

In reaching his decision, Justice Lema identified a list of factors that should be considered as a part of a “return-child” application. These factors are as follows:

- Whether the moving-parent has unilaterally moved the children without agreement or court involvement

-Whether the failure to give notice was an innocent mistake or done in bad faith (for example to try to change the status quo

- Whether family violence made providing notice unsafe, impractical or risky

- Whether the informational and timing requirements under the Divorce Act have substantially been met or can be remedied, or where the responding parent has constructive or actual notice of the specific relocation plan

- Where the non-moving parent is prejudiced by the failure to provide notice

- Where requiring formal notice would not likely change the result but would likely cause undue delay, expense and uncertainty

- Where there is no ongoing relationship between the children and the non-moving parent

- Where the best interests of the children require the parent to provide the formal notice

We hope that you will find this information helpful. If you have further questions or concerns regarding mobility, please feel free to Contact Us.