Disputes around custody and access can be some of the most difficult for a couple to deal with when going through a divorce or separation. Fights over who is a child’s primary guardian can lead to allegations of one parent being unfit for the role. A recent decision from the Court of Appeal of Alberta looks at some of the questions a court might ask in such a situation, as well as the threshold for determining whether someone is unfit. The family’s history The couple were married on April 18, 2015, just over a year after the birth of their only child. They separated on October 24, 2017. At this time the mother left with the child to live in an undisclosed location. She filed an application for a parenting order one week later. The father had not been made aware of the application, but found it when he searched the courthouse for such orders on the advice of his lawyer. He filed a response on November 22, 2017, seeking a minimum 50% parenting time. He also made allegations about the mother’s fitness to parent. One week later the judge referred the matter to Child and Family Services (“CFS”) The CFS investigation The counsel for CFS appeared before the judge on February 9, 2018 to state they had no protection concerns around either parent. They said the father’s concerns were unsubstantiated, and that the  mother had an appropriate residence, money to cover expenses, and food and clothing in the house. They also found no hygiene concerns. While she had been hospitalized a year before, she currently had no mental health diagnosis and was not struggling. Although she smokes marijuana, she did not do so while caring for their daughter. Their investigation of the father found that while he suffers from panic attacks, he has been taken medication. There was also a concern about his use of pornography, but CFS found he had a safety plan in place to ensure the child was not exposed to it. The trial judge dismissed the father’s application for interim primary parenting. However the father appealed on the grounds that the trial judge failed to consider the best interests of the child, by allowing the mother to establish a status quo by unilateral action and relying on an interim without prejudice consent order, and third, by making material errors in appreciation of the facts. The best interests of the child The court noted that the trial judge was correct in finding family chambers was not the appropriate place to change a parenting order. His inquiry into whether there was an urgent need did not turn up any safety concerns. As a result, he did not have to proceed to a best interests inquiry. The court, after reviewing the evidence, found the judge did not err in that decision. Did the chambers judge err by allowing the mother to establish a status quo by unilateral action and by relying on an interim without prejudice consent order? The court did not agree with the father that the trial judge relied on the unilateral setting of a status quo by the mother’s departure with the child. Instead, the court summarized,

“(The trial judge) relied on the fact that CFS found no substantiation to (the father’s) concerns about (the mother’s) fitness, and that in the face of the investigation report and the consent order, there was no urgency requiring a change of parenting in regular family chambers. The allegations that arose subsequent to the February 9, 2018 order were the subject of affidavit evidence by (the father), and opposing affidavit evidence by (the mother) that she had dealt with the concerns. The evidence did not demonstrate the threshold urgency required to change the parenting regime in regular family chambers. It was therefore unnecessary to proceed to the best interests inquiry. There was no error in his decision and it is entitled to respectful deference. This ground of appeal is dismissed.”

Did the chambers judge make material errors in appreciation of the facts? The court did not find the trial judge to have made palpable and overriding errors of fact. The court emphasized with the father’s frustration bout the outcome of the matter, but was unable to find validity in this or any other grounds of appeal. As a result the appeal was dismissed. If you and your partner have children and are considering a separation or divorce, or are perhaps already in the process, you should consult with a family lawyer as soon as possible. At NULaw we have been helping clients with custody and access matters since 1953. We provide clear, practical advice to our clients so they can make informed decisions about their parental rights. We can be reached online or by phone at 416-481-5604.