Mobility Arbitration Appeal Case Comment

Facts

AMLC and BDC began cohabitating in July 2015 and were married in July 2016. They separated in February 2020. There is one child of the marriage, S, who was four years old at the time of the appeal. During the relationship and marriage, the parties had resided in Calgary, Alberta.

AMLC intended to raise S in Warren, Manitoba, wehre she has strong family and cultural connections, however, BDC disagreed with the proposed relocation. The parties arbitrated this issue and the Arbitrator issued her award in April 2022, denying MLC the right to relocate with S. AMLC appealed to the Court of King's Bench.

Issues

The grounds of appeal that AMLC argued before the court were:

1. that the Arbitrator made errors of law, mixed law and fact, and fact in considering the best interests factors in subsection 16(3) of the Divorce Act;
2. that the Arbitrator failed to conduct a full and sensitive inquiry of the relocation-specific considerations in section 16.92 of the Divorce Act; and
3. that the Arbitrator had a reasonable apprehension bias.

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Standard of Review

The standard of review for errors of law is correctness. For questions of fact, the Arbitrator is entitled to deference in the initial decision and such findings should only be overturned where a palpable and overriding error was made. Reviewing errors of mixed law and fact falls on a spectrum between those two standards.

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Analysis

The Divorce Act (the “Act”) codifies factors relating to considerations for the child’s best interests, which are listed under section 16(3). In mobility decisions, the Act also requires decision-makers to conduct an analysis through a relocation-specific framework within section 16.92. In its decision, the Court held that there were various errors made by the Arbitrator pertaining to the s.16(3) best interests factors, which had a material impact on the weight given to each factor and affected her decision. As such, the mobility determination within the Arbitration decision was set aside by the Court.

Divorce Act - s.16(3)(b)

First, the Court found that the Arbitrator erred in her assessment of the best interests factor found at 16(3)(b) of the Act: the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life.

At Arbitration, AMLC submitted an affidavit sworn by her sister, who resides in Warren, Manitoba. This affidavit was meant to provide more context to AMLC’s living situation and family supports in Warren and served to support her mobility position in general. The Arbitrator faulted AMLC for this evidence, stating that “AMLC provided little evidence as to the importance of BDC’s role as S’s father” and that “AMLC’s evidence suggests that she places a stronger importance on S’s attachments and relationship with her extended family and friends than she does with his relationship with his father.”

The Court found that the Arbitrator erred in her assessment of AMLC’s general lack of evidence about “the importance of BDC’s role as S’s father.” The purpose of AMLC’s evidence was not to bolster BDC’s position, but to argue her position that S should be allowed to relocate with her to Manitoba. Furthermore, AMLC’s evidence did touch on BDC’s role as a father. During the Arbitration proceedings, AMLC deposed that she "will always do everything [she] can to support S's relationship with BDC because S really loves his father and needs BDC in his life"; and in an affidavit, she stated that "[i]t is my genuine desire that the Respondent remains actively involved in S's life after we relocate. I want the Respondent to feel comfortable and at peace with our future long-term parenting arrangement and I want him and S to have a close relationship". The Arbitrator ignored the fact that BDC gave no evidence on the importance of S’s relationship with AMLC and was not faulted. The Court took note of this imbalance and found that the Arbitrator erred in her assessment of the evidence under this best interests factor.‍

^{Comment: Counsel for AMLC noted an observable disparity between the Arbitrator's assessment of S's relationship with each parent. A great deal of commentary was dedicated to discussing the importance of BDC’s role as a father to S, and the specific efforts and activities they do together. There was no such discussion applied to AMLC for her role as a mother despite the Arbitrator’s own acknowledgement that S was closely bonded with both parents.}

Divorce Act - s.16(3)(c)

Second, the Arbitrator erred in her assessment of the factor found at 16(3)(c): each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse.

The Arbitrator found that AMLC’s intentions to support the development and maintenance of S’s relationship with BDC were not sincere by the mere fact that she had initially filed her Notice of Relocation, as is required by the Divorce Act when one parent intends to relocate with a child. The Court found that this assumption was a misapprehension of the law because any parent filing this notice would be penalized from the beginning of their mobility application, and as such, a decision-maker’s consideration of factor 16(3)(c) would be rendered meaningless.‍

^{Comment: The Arbitrator’s decision was unfairly punitive to AMLC for her initiation of the mobility proceedings, which implied that AMLC should have instead opted to preserve the parenting status quo in Alberta. Mobility applications should be considered in the absence of any such prejudice to the applicant parent. In mobility applications, the Divorce Act prohibits a decision-maker from considering a scenario in which the party contemplating the move were to stay in the current location.}

The Court also noted the Arbitrator’s comments that expressed concern about “the overall tone of AMLC’s evidence” and “the negative commentary about BDC that is throughout her evidence and written submissions.”. However, no examples were provided to support this commentary.

The Court noted another issue with the Arbitrator’s assessment of this factor, being the parenting proposals submitted by both parties. Both plans proposed a similar amount of physical contact for the other parent with S, and both included daily video calls. AMLC’s plan favoured longer visits and fewer trips, and BDC’s plan favoured shorter visits with more frequent travel. Despite the generally equivalent proposals, the Arbitrator found that AMLC’s proposed parenting plan “greatly reduces BDC’s ability to be a present, active participant in S’s life”, “allocates BDC to the sidelines of S’s life”, and “does not indicate a willingness on her part to support S’s bond with his father.”. The Court acknowledged that there was no clear reason within the Award that explained why frequency of visits with more travel was preferred, and why AMLC’s plan was so strongly criticized. Further acknowledged was the fact that AMLC’s plan would have reduced the overall cost of travel and travel time between Alberta and Manitoba. The Court ultimately found this assessment to be made in error, especially since no reciprocal comments were made about BDC’s proposed parenting plan as it related to AMLC’s ability to participate in S’s life or BDC’s willingness to foster S’s relationship with AMLC.

Divorce Act – s.16(3)(f)

Lastly, the Arbitrator erred in her assessment of the factor found at 16(3)(f): the Child's cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage.

AMLC and S are of Métis and francophone heritage from the Red River Métis Nation in Manitoba. Throughout the Arbitration proceedings, AMLC provided clear and extensive evidence as to her distinct and unique identity. AMLC emphasized the importance of practising her culture with S surrounded by her community, and in the region of which her heritage was founded.

The Arbitrator criticized AMLC’s connectedness to the region, when she stated that “AMLC has strongly suggested that the only way for S to be properly exposed to her culture is by living in Manitoba on a full-time basis with her, and being part of the Manitoba Métis Federation. AMLC shows a strong reluctance to have S participate in any Alberta Métis programs.” The Arbitrator made note of BDC’s proposal to involve S in Métis cultural functions in Alberta in an effort to hone S’s cultural upbringing. She commented that “AMLC has refused to consider having S participate in Métis activities in Alberta as they differ from the traditions and culture of the Manitoba Métis.” However, by doing so, the Court held that the Arbitrator “forgot, ignored, or misconceived the evidence of the distinction between the Red River Métis and Alberta Métis in a way that affected her findings”. The Court further noted that AMLC’s reluctance to involve S in the Alberta Métis community should have been considered in the context that such a substitute was not related to his own distinct Indigenous culture, heritage, and upbringing.

^{Comment: The Award notes that “no one factor outweighs the others, and that all factors must be considered and applied to each specific set of facts.”. During oral submissions, the Court implied to AMLC’s counsel that AMLC may have been prioritizing 16(3)(f) within the best interests analysis. Counsel acknowledged that a significant amount of time had been dedicated to explaining why this factor was misapprehended by the Arbitratorand acknowledged her understanding that it would not be prioritized within the legal framework above other best interests factors. AMLC did note in Arbitration proceedings, however, that S’s cultural upbringing was a key reason for her proposed relocation. Furthermore, AMLC argued that the Arbitrator had erred on numerous points within the Award under this factor, and many comments indicated a lack of sensitivity to the distinction of the Red River Métis as compared to the Alberta Métis communities.}

The Arbitrator also indicated in her Award that AMLC was prioritizing her need for S’s exposure tohis community and culture over the need for a strong father figure. Further, the Arbitrator expressed concern that S may become so involved in the Métis community that time with his father will become less important as time passes.

^{Comment: Counsel made further arguments that the Arbitrator failed to consider that AMLC’s Indigenous cultural heritage is rapidly fading with the passing of each generation. Existing community members play an active role in preserving the Red River Métis culture for future generations within the broader Canadian landscape. As such, it is important to involve younger members of the community in an active and meaningful way.}

During Arbitration proceedings, BDC discussed his Scottish heritage. He acknowledged that his connection to his heritage was not as strong as AMLC’s connection to hers, however, the Arbitration Award states disappointment that AMLC “appears to give no consideration to [BDC’s] heritage”. During proceedings, BDC provided little to no evidence of the importance he attaches to his Scottish heritage.

The Court found no reason for the Arbitrators criticisms, and additionally, failed to give appropriate weight to this factor. As a result, the Court held that the Arbitrator erred in her overall assessment of s.16(3)(f).

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Conclusion

The mobility determination within the Arbitration Award was set aside, and AMLC was granted leave to apply to the court for a redetermination of this issue.

Despite finding no reasonable apprehension of bias, the Court noted that AMLC was not required to return to this decision-maker for a redetermination since AMLC had lost confidence in the arbitration process and the future costs of doing so were prohibitive.

^{Comment: With regard to the Court’s comments that no reasonable apprehension of bias was found, counsel noted during oral arguments that the bias was apparent throughout the Arbitration Award. In many of her analyses, the Arbitrator unfairly criticized AMLC’s intentions or evidence, while failing to reciprocate her analysis for BDC. We argued that a level of bias was reasonably apparent in the Award because not only were various factors misapprehended individually, but when considered cohesively, a pattern was evident of a failure to equally weigh the parties’ submissions. Moreover, there appeared to be an undue and unexplained criticism towards AMLC’s evidence, even in instances where such evidence was neutral or factually equivalent to BDC’s.}

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